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Common use of Conditions Precedent to Initial Advance Clause in Contracts

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 3 contracts

Samples: Revolving Credit and Security Agreement (Blackstone Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund), Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)

Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of each Lender the Issuing Banks to make its issue (or arrange for the issuance of) the initial Advance hereunder shall be Letter of Credit hereunder, are subject to the conditions precedent that prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received on or before the Closing Date each of the following, in form and substance satisfactory to the Administrative Agent: (i) This duly executed Agreement; (ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment; (iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto; (iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank; (v) The duly executed Blocked Account Agreements required by Section 6.15; (vi) The Fee Letter duly executed by the Borrowers; (vii) The duly executed Post-Closing Agreement; (viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered completed by auditors and appraisers selected by the parties thereto, which shall each be in full force and effectAdministrative Agent; (bix) true and complete copies The legal opinion of King & Spalding LLP, counsel to the Constituent Documents of Borrower Parties, addressed to the Borrower, the Equityholder and the Servicer as in effect on the Closing DateLender Group; (cx) The legal opinion of (A) Xxxxxx Xxx Xxxxx & Xxxxxxxxx LLP and (B) Xxxx Xxxxxxxx, P.A., local counsel to the Borrower Parties, addressed to the Lender Group; (xi) The duly executed Request for Advance for the initial Advance of the Loans; (xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008; (xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a Responsible Officer copy of the Certificate of Incorporation or Formation of such Borrower certifying (i) as Party certified to its Constituent Documentsbe true, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true complete and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with by the Secretary of State of the State of Delaware such Borrower Party’s incorporation or formation, (B) a true, complete and any correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other applicable filing office than agreements entered into pursuant to or in any applicable jurisdiction that connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party; (xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder; (xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009; (xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing; (xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5; (xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent deems necessary or desirable in order to perfect connection with the interests in removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the Collateral contemplated by this Agreementassets of the Borrower Parties; (hxix) copies of proper financing statement amendments (or Lien search results with respect to the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release Borrower Parties from all security interests appropriate jurisdictions and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorfiling offices; (ixx) legal opinions Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (addressed subject only to each Permitted Liens); (xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Secured Parties) Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Borrower, Administrative Agent; (xxii) A flow of funds report duly executed by the Equityholder, Administrative Borrower which report shall include a statement of all sources and uses of funds on the Servicer, the Collateral Agent and the Custodian, covering Agreement Date; and (xxiii) All such matters other documents as the Administrative Agent and its counsel shall may reasonably request;, certified by an appropriate governmental official or an Authorized Signatory if so requested. (jb) The Lender Group shall have received evidence reasonably satisfactory to it them that all no change in the business assets, management, operations or financial condition of the Covered Accounts Borrower Parties shall have been establishedoccurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Account Control Agreement Lender Group shall have been executed received a certificate of an Authorized Signatory of the Administrative Borrower so stating. (c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and delivered by substance reasonably acceptable to the Borrower, members of the Collateral Agent and the Custodian and Lender Group. (d) The Lender Group shall be have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect;effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating. (ke) evidence The Administrative Agent shall have received confirmation that (i) the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all fees and expenses due and payable to each Lender on or prior appropriate jurisdictions, in such form as shall be satisfactory to the Closing Administrative Agent. (f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital). (g) The Administrative Agent shall have been received or will completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel acceptable to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedits sole discretion.

Appears in 3 contracts

Samples: Credit Agreement (Oxford Industries Inc), Credit Agreement (Oxford Industries Inc), Credit Agreement (Oxford Industries Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral AgentLoan Documents; (b) duly executed original signatures to the Initial Warrant; (c) the Operating Documents and delivered long-form good standing certificates of Borrower and its Subsidiaries certified by the parties Secretary of State (or equivalent agency) of Borrower’s and such Subsidiaries’ jurisdiction of organization or formation and each jurisdiction in which Borrower and each Subsidiary is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Effective Date; (d) duly executed original signatures to the completed Borrowing Resolutions for Borrower; (e) certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released; (f) the Perfection Certificate of Borrower, together with the duly executed original signature thereto, which shall each be ; (g) a copy of Borrower’s Investors’ Rights Agreement and any amendments thereto; (h) evidence satisfactory to Bank that the insurance policies and endorsements required by Section 6.7 hereof are in full force and effect; (b) true and complete copies , together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorBank; (i) legal opinions (addressed to each the completion of the Secured Parties) of counsel Initial Audit with results satisfactory to the Borrower, the Equityholder, the Servicer, the Collateral Agent Bank in its sole and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;absolute discretion; and (j) evidence reasonably satisfactory to it that all payment of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses Bank Expenses then due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, as specified in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 3 contracts

Samples: Loan and Security Agreement (Sumo Logic, Inc.), Loan and Security Agreement (Sumo Logic, Inc.), Loan and Security Agreement (Sumo Logic, Inc.)

Conditions Precedent to Initial Advance. The Each Lender’s obligation of each Lender to make its the initial Advance and each Secured Party’s obligations hereunder shall be is subject to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentthat: (a) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and the Required Lenders, such documents, and completion of such other matters, as the Administrative Agent or the Required Lenders may reasonably deem necessary or appropriate, including, without limitation: (i) duly executed original signatures to the Loan Documents; (ii) (A) each Loan Party’s Governing Documents, (B) a good standing certificate of each Loan Party certified by the Secretary of State of the jurisdiction of incorporation of each Loan Party as of a date no earlier than thirty (30) days prior to the Effective Date together with bring-down telegrams or facsimiles reasonably requested by the Administrative Agent; (iii) Secretary’s Certificates with completed Borrowing Resolutions from each of the Facility Documents (other than Loan Parties in the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectform attached hereto as Exhibit F; (biv) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Datea duly executed Federal Reserve Form U-1 (Regulation U); (cv) a certificate proper financing statements in form appropriate for filing under the Code of a Responsible Officer of all jurisdictions that the Borrower certifying (i) as Administrative Agent may deem necessary in order to its Constituent Documentsperfect and protect the first priority liens, (ii) as subject to its resolutions or other action of its designated manager approving this Agreement Permitted Liens, and security interests created under the other Facility Documents to which it is a party Pledge and Security Agreement, covering the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth Collateral described in the Facility Documents to which it is a party are true Pledge and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partySecurity Agreement; (dvi) evidence of the completion of all other recordings and filings of or with respect to the Pledge and Security Agreement that the Agents may deem necessary in order to perfect and protect the security interest created thereunder and payment of all filing and recording fees related thereto; (vii) evidence that all other actions that the Agents may deem necessary in order to perfect and protect the first priority liens, subject to Permitted Liens, and security interests created under the Pledge and Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and/or release letters and UCC-3 termination statements); (viii) [Reserved]; (eix) [Reserved]a legal opinion of Borrower’s counsel dated as of the Effective Date together with the duly executed original signatures thereto; (fx) a certificate of a Responsible Officer payment of the Servicer certifyingfees then due as specified in Section 2.5 hereof and all other amounts then due as specified in Section 10.16; (xi) Solvency Certificate; (xii) such other agreements, respectivelyinstruments, (i) as approvals, opinions and other documents, each satisfactory to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement the Administrative Agent and the Required Lenders in form and substance, as the Administrative Agent or the Required Lenders may reasonably request, including, without limitation, a duly executed W-9 (or such other Facility Documents to which it is a party applicable Internal Revenue Service tax form) and requested “know your customer” information from the transactions contemplated hereby and thereby, Loan Parties; (iiixiii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as evidence of the Closing Date (except insurance coverage required by Section 6.12 and such other insurance coverage with respect to the extent such representations business and warranties expressly relate to any earlier dateoperations of the Loan Parties as the Administrative Agent may reasonably request, in which case each case, where requested by the Administrative Agent, with such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) endorsements as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (named insureds or the equivalent thereof in any applicable foreign jurisdiction, loss payees thereunder as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary may request and providing that such policy may be terminated or desirable in order to perfect canceled (by the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (insurer or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary insured thereunder) only upon thirty (30) days’ prior written notice to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and each such named insured or loss payee, together with evidence of the Custodian, covering payment of all premiums due in respect thereof for such matters period as the Administrative Collateral Agent and its counsel shall reasonably may request; (jxiv) evidence reasonably satisfactory demonstrating that Borrower is in compliance with the requirements of Sections 6.5 and 7.3 and that there is no Default or Event of Default under Sections 8.14 or 8.15, in each case after giving effect to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effectany transactions contemplated at such time; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (mxv) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this AgreementPortfolio Report; and (iiixvi) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedMiscellaneous Securities Report.

Appears in 2 contracts

Samples: Loan and Guaranty Agreement (Safeguard Scientifics Inc), Loan and Guaranty Agreement (Safeguard Scientifics Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial the Initial Advance hereunder shall be is subject to the following conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentprecedent: (a) each Receipt by Lender of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly fully executed and delivered by the parties thereto, which shall each be in full force and effectAdvance Request; (b) true and complete copies If the Initial Advance is a Variable Advance, receipt by Lender at least five (5) days prior to the Initial Closing Date, of the Constituent Documents confirmation of an Interest Rate Cap commitment, in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Borrower, the Equityholder and the Servicer as in effect on the Initial Closing Date; (c) a certificate of a Responsible Officer of If the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it Initial Advance is a party and Variable Advance, receipt by Lender of Interest Rate Cap Documents in accordance with the transactions contemplated hereby and therebyPledge, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects Interest Rate Cap Agreement, effective as of the Initial Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyDate; (d) [Reserved]Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed and delivered original copies of the Variable Facility Note or Fixed Facility Note, as applicable, the Guaranty, the Initial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, and other appropriate instruments, in form and substance satisfactory to Lender and in form proper for recordation, as may be necessary in the opinion of Lender to perfect the Liens created by the applicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, and the payment of all taxes, fees and other charges payable in connection with such execution, delivery, recording and filing; (e) [Reserved];If the Initial Advance is a Variable DMBS Advance, receipt by Lender of the first installment of Variable Facility Fee and the entire Discount payable by Borrower pursuant to Section 1.04; and (f) a certificate of a Responsible Officer Receipt by Lender of the Servicer certifyingInitial Origination Fee pursuant to Section 10.03(a), respectively, (ithe Initial Due Diligence Deposit pursuant to Section 10.03(a) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Initial Due Diligence Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 10.04(a).

Appears in 2 contracts

Samples: Master Credit Facility Agreement (Education Realty Trust, Inc.), Master Credit Facility Agreement (Education Realty Trust, Inc.)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLoan Documents; (b) true and complete copies repayment in full of all sums due under the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing DateExisting Term Loan; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except duly executed original signatures to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyControl Agreements; (d) [Reserved]; (e) [Reserved]; (f) Borrower’s Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State of Delaware, State of Michigan, and the State of California each as of a date no earlier than thirty (30) days prior to the Effective Date; (e) duly executed original signatures to the completed Borrowing Resolutions for Borrower; (f) the Intercreditor Agreement, dated the Effective Date (as amended, restated, or otherwise modified, the “Capital Royalty/Silicon Valley Bank Intercreditor Agreement”), by and among Capital Royalty Partners II L.P., a Delaware limited partnership, Capital Royalty Partners II — Parallel Fund “A” L.P., a Delaware limited partnership, and any other applicable filing office in any applicable jurisdiction that Parallel Investment Opportunities Partners II L.P., a Delaware limited partnership and Bank, together with the Administrative Agent deems necessary or desirable in order to perfect duly executed original signatures thereto; (g) true, correct and complete copies of the interests in the Collateral contemplated by this AgreementCapital Royalty Loan Documents; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary duly executed original signature to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferora payoff letter from Oxford Finance Corporation; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable the Liens securing Indebtedness owed by Borrower to each Lender on or prior to the Closing Date have been received or Oxford Finance Corporation will be received contemporaneously with the Closing Date; terminated and (ii) the reasonable and documented fees and expenses documents and/or filings evidencing the perfection of Cadwaladersuch Liens, Xxxxxxxxxx & Xxxx LLPincluding without limitation any financing statements and/or control agreements, counsel to have or will, concurrently with the Administrative Agentinitial Advance, be terminated. (j) certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the transactions contemplated hereby initial Advance, will be terminated or released; (to k) the extent invoiced prior Perfection Certificate of Borrower, together with the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrowerduly executed original signature thereto; (l) delivery a landlord’s consent in favor of such Collateral Bank for (including any promissory notei) 0000 00xx Xxxxxx XX, executed assignment agreements Xxxxx Xxxxxx, Xxxxxxxx 00000, (ii) 0000 00xx Xxxxxx, XX, Xxxxx Xxxxxx, Xxxxxxxx, and Word or pdf copies (iii) 000 Xxxxx Xxxxx, XX, Xxxxx Xxxxxx, Xxxxxxxx, by each of the principal credit agreement for each initial Collateral Loanrespective landlord thereof, to the extent received by the Borrower) in accordance together with the Custodian Agreement shall have been effectedduly executed original signatures thereto; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted insurance policies and/or endorsements required pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this AgreementSection 6.7 hereof; and (n) such other opinions, instruments, certificates payment of the fees and documents from the Borrower Bank Expenses then due as the Agents or any Lender shall have reasonably requestedspecified in Section 2.4 hereof.

Appears in 2 contracts

Samples: Loan and Security Agreement (Corium International, Inc.), Loan and Security Agreement (Corium International, Inc.)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject As conditions precedent to the conditions precedent that Initial Advance of the Administrative Agent shall have received on or before applicable portion of the Closing Date Facility by the following, each in form and substance reasonably satisfactory to the Administrative AgentLender: (a) each of the Facility Documents Borrower will have: (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agenti) duly executed and delivered by or caused to be executed and delivered all of the parties Security documents referred to in paragraph 8 above and the documents, securities and instruments referred therein and the Lender will have completed all registrations and other filings that may be prudent or necessary to perfect the Lender’s security therein; (ii) received and provided the Lender with written evidence of the approval of the Exchange to the issuance of the Standby Fee Shares and the Bonus Shares; (iii) delivered a certified copy of its directors’ resolutions authorizing the borrowing of the Facility, the grant of the Security, as applicable, and the execution and delivery of this Agreement and all agreements, documents and instruments referred to herein, together with an officer’s certificate, certifying certain factual matters, in form and terms satisfactory to the Lender; (iv) delivered a certified copy of a resolution of the directors of the Guarantor authorizing the guarantee of the Facility, the grant of the Security, as applicable, and the execution and deliver of all agreements, documents and instruments applicable thereto, which shall each together with an officer’s certificate, certifying certain factual matters, in form and terms satisfactory to the Lender; (v) caused to be executed and delivered a legal opinion of counsel to the Borrower and the Guarantor, in full force form and effectterms satisfactory to the Lender and its counsel; (b) true the representations and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer warranties of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth contained in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall paragraph 11 will be true and correct in all material respects as of such earlier date)and the Borrower will have complied with all covenants required to be complied with by it under this Agreement and all other documents delivered hereunder, (iv) that no Default or Event of Default has occurred and is continuing, and (v) as prior to the incumbency and specimen signature Initial Advance of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyby the Lender; (c) there shall have been no adverse material change in the business, operations, assets or ownership of the Borrower since the date of the Term Sheet; (d) [Reserved];the Lender will have completed and, in its sole and absolute discretion, be satisfied with its due diligence review of the Borrower and the Guarantor and their respective properties and assets and will have received the approval of the Lender’s board of directors; and (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier dateLender will, in which case such representations its sole and warranties shall absolute discretion, be true and correct in all material respects as of such earlier date), and (iv) satisfied as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State creditworthiness of the State Borrower and its Subsidiaries and the adequacy of Delaware and the collateral security contemplated herein. If any other applicable filing office in any applicable jurisdiction that of the Administrative Agent deems necessary foregoing conditions precedent are not satisfied or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted waived by the BorrowerLender in writing on or before April 16, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower2007, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been establishedthis Agreement will terminate, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall Lender will be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior under no further obligation to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, Borrower in connection with the transactions transaction contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedherein.

Appears in 2 contracts

Samples: Credit Agreement (Transatlantic Petroleum Corp.), Credit Agreement (Transatlantic Petroleum Corp.)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be pursuant to this Agreement is subject to the conditions condition precedent that (i) the Administrative Borrower or the Originator shall have paid in full (x) all amounts required to be paid by each of them on or prior to the date hereof pursuant to the Fee Letter and (y) the fees and expenses described in Section 14.5(a) and invoiced prior to the date hereof, and (ii) the Agent shall have received received, on or before the Closing Date date of such initial Advance, the following, each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Administrative Agent: (a) This Agreement, the Sale Agreement, the Purchase and Sale Agreement and each of the Facility other Transaction Documents (other than executed by the Collateral Agent Fee Letter which shall be delivered directly to Originator, the Collateral Agent) Borrower or the Servicer, as applicable, each duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies A certificate of the Constituent Documents Secretary or Assistant Secretary or other appropriate officer of each Loan Party certifying the names and true signatures of the Borrower, the Equityholder officers authorized on its behalf to sign this Agreement and the Servicer other Transaction Documents to be delivered by it hereunder (on which certificate the Agent and the Lenders may conclusively rely until such time as in effect on the Closing DateAgent shall receive from such Loan Party a revised certificate meeting the requirements of this subsection (b)); (c) a certificate The Certificate of Formation or other organizational documents of each Loan Party, duly certified by the Secretary of State of such Loan Party’s state of incorporation or organization, as of a Responsible Officer recent date acceptable to the Agent in each case together with a copy of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions limited liability company agreement or other action organizational document of such Loan Party, duly certified by the Secretary or an Assistant Secretary of such Loan Party or other appropriate officer; (d) Resolutions of the board of managers or other governing body of each Loan Party authorizing its designated manager approving execution, delivery and performance of this Agreement and the other Facility Transaction Documents to which it is a party and the transactions contemplated hereby all other documents evidencing necessary corporate action and therebygovernment approvals, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]if any; (e) [Reserved]Copies of good standing certificates or similar certificates of existence for each Loan Party, issued by the Secretaries of State of the state of incorporation or organization of such Loan Party and the state where such Loan Party’s principal place of business is located; (f) a certificate of a Responsible Officer of UCC financing statements and/or UCC financing statement amendments satisfactory to the Servicer certifying, respectively, (i) as Agent with respect to its Constituent Documents, (ii) as the Collateral together with written evidence satisfactory to its resolutions the Agent that the same have been filed or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth submitted for filing in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier dateappropriate public filing offices(s), in which case such representations and warranties shall be true and correct the Agent’s sole discretion, to perfect the Secured Parties’ first priority security interest in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyCollateral; (g) financing statements (or A signed acknowledgment by the equivalent thereof in any applicable foreign jurisdictionLockbox Bank, as applicable) in proper form for filing on Wachovia and the Closing Date, Servicer of the assignment of the rights under the UCC with Lockbox Agreement to the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementAgent; (h) Search reports provided in writing to the Agent (i) listing all effective financing statements that name any Loan Party as debtor and that are filed in the jurisdictions in which filings were made pursuant to subsection (f) above and in such other jurisdictions that the Agent shall reasonably request, together with copies of proper such financing statement amendments statements, and (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), ii) listing all tax liens and judgment liens (if any, necessary ) filed against any debtor referred to release all security interests and other rights of any Person in clause (i) above in the Collateral previously granted by the Borrower, the Equityholder or any transferorjurisdictions described therein and showing no such Liens; (i) legal opinions (addressed to each of The Seller Note, duly executed by the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent Borrower and the CustodianInitial PCA Note, covering such matters as duly executed by the Administrative Agent and its counsel shall reasonably requestSeller; (j) evidence reasonably satisfactory A favorable opinion of counsel to it that all Loan Parties admitted to practice in the State of Illinois, covering the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be matters set forth in full force and effectExhibit 5.1(j); (k) evidence that Favorable opinions of counsel to Loan Parties, as to: (i1) the existence of a “true sale” of the Receivables from the Originator to the Seller and from the Seller to the Borrower under the Sale Agreement and the Purchase and Sale Agreement, respectively; and (2) the inapplicability of the doctrine of substantive consolidation to the Borrower and the Originator and to the Borrower and the Seller in connection with any bankruptcy proceeding involving any Loan Party; (l) A pro forma Information Package, prepared as of the Cut-Off Date of August 31, 2008; (m) Satisfactory results of a review and audit of the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Originator’s operating location(s) and satisfactory review and approval of the Eligible Receivables then in existence and a written outside audit report of a financial consultant reasonably acceptable to the Agent as to such matters, in each case, as of a recent date. (n) The Liquidity Agreement, in form and substance satisfactory to the Agent, duly executed by the parties thereto; (o) With respect to the Performance Guarantor, copies of its most recent reports on SEC Forms 10-K and 10-Q; (p) The Fee Letter, together with payment of any and all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with date of the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrowerinitial Advance; (lq) delivery A certificate of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies an Authorized Officer of each of the principal credit agreement for each Loan Parties certifying that as of the date of the initial Collateral LoanAdvance, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effectedno Event of Default or Unmatured Default exists and is continuing; (mr) a certificate of a Responsible Officer of The Assignment Agreement, duly executed by the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreementparties thereto; and (iiis) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such Such other opinionsagreements, instruments, certificates certificates, opinions and other documents from the Borrower as the Agents or any Lender shall have Agent may reasonably requestedrequest.

Appears in 2 contracts

Samples: Credit and Security Agreement (Packaging Corp of America), Credit and Security Agreement (Packaging Corp of America)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Borrower shall consent to or have received on or before the Closing Date the followingdelivered, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reservedreserved]; (ec) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Operating Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is Borrower and Parent and a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with good standing certificate certified by the Secretary of State of the State of Delaware as of a date no earlier than thirty (30) days prior to the Closing Date; (d) duly executed original signatures to the completed Resolutions for Borrower and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Parent; (e) duly executed Servicing Agreement; (hf) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdictiona payoff letter from Xxxxx Fargo Bank, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorN.A.; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (kg) evidence that (i) all fees and expenses due and payable the Liens securing Indebtedness owed by Borrower to each Lender on or prior to the Closing Date have been received or Xxxxx Fargo Bank, N.A. will be received contemporaneously with the Closing Date; terminated and (ii) the reasonable documents and/or filings evidencing the perfection of such Liens, including without limitation any financing statements and/or control agreements, have or will, concurrently with the initial Advance, be terminated; (h) [reserved]; (i) certified copies, dated as of a recent date, of financing statement searches as to Borrower and documented fees and expenses of CadwaladerParent, Xxxxxxxxxx & Xxxx LLPas Bank shall request, counsel to accompanied by written evidence (including any UCC termination statements) that the Administrative AgentLiens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the transactions contemplated hereby initial Advance, will be terminated or released; (to the extent invoiced prior the Closing Date); and (iiij) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee LetterDisclosure Certificates executed by Borrower and Parent; (k) that are, in a copy of the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrowerduly executed Subordinated Note; (l) delivery legal opinions of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies Borrower’s counsel dated as of the principal credit agreement for each initial Collateral LoanClosing Date together with the duly executed original signatures thereto with respect to customary corporate matters, as well as the nature of the sale of Accounts to the extent received by Borrower as a true sale, and the Borrower) in accordance with risk of consolidation of the Custodian Agreement shall have been effectedBorrower into a bankruptcy of the Parent; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens[reserved]; (iin) [reserved]; (o) evidence satisfactory to Bank that the insurance policies required by Section 6.7 and 6.13 hereof are in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Bank; (p) the Borrower has not assigned, pledged or otherwise encumbered any interest completion of the Initial Audit with results satisfactory to Bank in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreementits sole and absolute discretion; and (iiiq) upon grant by payment of the Borrower, the Collateral Agent has a first priority perfected security interest fees and Bank Expenses then due as specified in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.6 hereof.

Appears in 2 contracts

Samples: Loan and Security Agreement (Conexant Systems Inc), Loan and Security Agreement (Conexant Systems Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial the Initial Advance hereunder shall be is subject to the fulfillment, to the satisfaction of Lender and its counsel, of each of the following conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative AgentDate: (a) each Borrowers’ Cases have commenced and are pending in the Bankruptcy Court under Chapter 11 of the Facility Documents Bankruptcy Code; (other than the Collateral Agent Fee Letter which b) Lender shall be delivered directly have received a certificate from an Authorized Officer of Borrowers attesting to the Collateral Agentresolutions of Borrowers’ Boards of Directors authorizing (i) duly executed Borrowers’ commencement of the Cases in the Bankruptcy Court under Chapter 11 of the Bankruptcy Code, (ii) Borrowers’ execution and delivered by delivery of this Agreement and the parties theretoother Loan Documents to which Borrowers are parties, which and (iii) specific officers of Borrowers to execute same; (c) the Bankruptcy Court shall each be have entered the Interim Bankruptcy Court Order, and such order shall remain in full force and effect, except for such modifications thereto acceptable to Lender; (bd) true and complete copies no motion shall have been granted (i) appointing a trustee in any of Borrowers’ Cases, or (ii) converting any of Borrowers’ Cases to Chapter 7 of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing DateBankruptcy Code; (ce) Borrowers shall have filed with the Bankruptcy Court in the Cases a certificate of a Responsible Officer motion seeking the approval of the Borrower certifying Bidding Procedures Order and the Purchase Agreement; (if) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving the representations and warranties contained in this Agreement and the other Facility Loan Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of the date of such advance, as though made on and as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date date (except to the extent that such representations and warranties expressly relate solely to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such an earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware all other documents and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian this Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying delivered or executed or recorded and shall be in form and substance satisfactory to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free Lender and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreementits counsel; and (iiih) upon grant by no Event of Default or event which with the Borrower, giving of notice or passage of time would constitute an Event of Default shall have occurred and be continuing on the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) date of such other opinions, instruments, certificates and documents advance nor shall either result from the Borrower as making of the Agents or any Lender shall have reasonably requestedadvance.

Appears in 2 contracts

Samples: Loan and Security Agreement (Proxim Corp), Loan and Security Agreement (Proxim Corp)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its the initial Advance hereunder shall be Loan advance is subject to the conditions condition precedent that the Administrative Agent Lender shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to Lender, each of the Administrative Agentfollowing: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) this Agreement, duly executed and delivered by the parties thereto, which shall each be in full force and effecton behalf of Borrower; (b) true and complete copies the IP Security Agreement, duly executed on behalf of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a the Financing Statement; (d) the Merger Agreement, duly executed on behalf of Borrower; (e) an officer’s certificate of a Responsible Officer of the Borrower certifying (i) as with respect to its Constituent Documentscertificate of incorporation and bylaws, (ii) as to its resolutions or other action authorizing the execution and delivery of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingLoan Documents, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]incumbency; (f) a certificate proof of a Responsible Officer filing of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partySchedule 14D-9 by Borrower; (g) financing statements (consent from existing lenders or the equivalent thereof in any applicable foreign jurisdictionlessors, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreementif required; (h) copies of proper financing statement amendments in connection with the SVB Loan Documents (or including the equivalent thereof Accounts Receivable Purchase Agreement and the Intellectual Property Security Agreement executed in any applicable foreign jurisdiction, as applicableconnection therewith), if anyconsent from Silicon Valley Bank acknowledging and permitting (i) Borrower’s execution and performance of the Merger Agreement and (ii) Borrower’s execution and performance of this Agreement and the IP Security Agreement, necessary to release all security interests including the granting of Liens hereunder and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorthereunder; (i) a legal opinions (addressed to each of the Secured Parties) of counsel to the opinion from Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;’s counsel; and (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been establishedsuch other documents, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery completion of such Collateral (including any promissory noteother matters, executed assignment agreements as Lender may reasonably request and Word deem necessary or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedappropriate.

Appears in 2 contracts

Samples: Loan and Security Agreement (Starbase Corp), Loan and Security Agreement (Borland Software Corp)

Conditions Precedent to Initial Advance. The Subject to the terms and provisions of Sections 1.1 and 1.2, the obligation of each Lender Bank to make its initial Advance advance hereunder shall be is subject to the full and complete satisfaction of each of the following conditions precedent that the Administrative Agent precedent: (a) Bank shall have received on and approved: (i) each of the Credit Documents, in properly executed form; (ii) the Repurchase Agreement, and all other documents and agreements pertaining thereto; (iii) the certificate of incorporation, articles of incorporation, and bylaws of Borrower, together with any and all modifications thereof as of the date hereof; (iv) all Certificates of Authority, Certificates of Existence, Certificates of Good Standing (or before such other evidence, as is satisfactory to Bank, that Borrower is in good standing in the Closing Date State of Texas, and in all other states in which Borrower is transacting business, as is satisfactory to Lender), borrowing resolutions (with secretary's certificate), Secretary's Certificates of Incumbency, and all other documents required by Bank to evidence Borrower and its representatives are empowered and duly authorized to enter into the followingagreements evidenced by the Credit Documents; (v) current certificates of insurance for the insurance required by this Agreement, together with copies of all policies relating thereto as requested by Bank (each naming Bank as loss payee thereunder); and (vi) an opinion of counsel of Borrower and Guarantor, in form and substance reasonably satisfactory to Bank, stating, among other things, that Borrower is authorized to enter into this Agreement and the Administrative Agent: (a) each other Credit Documents and that this Agreement and the other Credit Documents constitute legally binding and enforceable obligations of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectBorrower; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing DateNo Material Adverse Change shall have occurred; (c) a certificate The representations and warranties contained in Section 3 shall, except as affected by the transactions contemplated by this Agreement, be true and unbreached; (d) No Event of a Responsible Officer Default shall have occurred and be continuing; (e) All other applicable requirements of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Credit Documents to which it is a party shall have been fully and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]completely satisfied; (f) a certificate All legal matters incident to the consummation of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties under this Agreement shall be true and correct in all material respects as of such earlier date)reasonably satisfactory to Messrs. Gardere Wynnx Xxxxxx & Xiggx, and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;X.L.P., special counsel for Bank; and (g) financing statements (or As security for the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State payment of the State of Delaware Notes and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests payment and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each performance of the Secured Parties) of counsel Liabilities, Bank shall have received, in addition to the Borroweritems set forth elsewhere in this Section, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees instruments reasonably required by Bank to give Bank (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that areincluding, in the case of clauses (ii) and (iii)without limitation, invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (mlandlord's waivers) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, first and prior perfected security interest and lien in the case of each item of Collateral pledged and to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or security interests otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedherein).

Appears in 1 contract

Samples: Revolving and Advancing Credit and Security Agreement (Central Freight Lines Inc/Tx)

Conditions Precedent to Initial Advance. The obligation of each --------------------------------------- the Lender to make its the initial Advance hereunder shall be is subject to the fulfillment of each of the following conditions precedent that prior to or contemporaneously with the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentmaking of such Advance: (a) The Lender shall have received each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly following, in form and substance satisfactory to the Collateral AgentLender: (i) duly executed Note; (ii) duly executed Negative Pledge Agreement executed and delivered by the parties thereto, which shall Borrower and each be in full force and effectSubsidiary; (biii) true duly executed Subsidiary Guaranty executed and complete delivered by each Subsidiary of the Borrower; (iv) copies of insurance binders or certificates covering the assets of the Borrower and its Subsidiaries and otherwise meeting the requirements of Section 5.5 hereof; (v) legal opinion of Long, Xxxxxxxx & Xxxxxx LLP, as general counsel to the Borrower and its Subsidiaries, addressed to the Lender, and dated as of the Agreement Date; (vi) copies of the Constituent Documents most recent quarterly and annual financial statements of the Borrower and its Subsidiaries, certified by the chief financial officer of the Borrower; (vii) any required consents to the closing of this Agreement or to the execution, delivery and performance of this Agreement and the other Loan Documents, each of which shall be in form and substance satisfactory to the Lender; (viii) the loan certificate of the Borrower, in substantially the Equityholder form attached hereto as Exhibit A-1, including a certificate of incumbency ----------- with respect to each Authorized Signatory, together with appropriate attachments which shall include, without limitation, the following items: (A) a copy of the Certificate or Articles of Incorporation of the Borrower, certified to be true, complete and correct by the Servicer Georgia Secretary of State, (B) certificates of good standing or foreign qualification for the Borrower issued by the Secretary of State or similar state official for each state in which the Borrower is required to qualify to do business, (C) a true, complete and correct copy of the By-Laws of the Borrower, as in effect on the Closing Agreement Date; , (cD) a certificate true, complete and correct copy of a Responsible Officer the resolutions of the Borrower certifying (i) as authorizing it to its Constituent Documentsexecute, (ii) as to its resolutions or other action of its designated manager approving deliver and perform this Agreement and the other Facility Loan Documents to which it is and (E) a party and the transactions contemplated hereby and therebytrue, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true complete and correct copy of any shareholders' agreements or voting trust agreements in all material respects as effect with respect to the stock of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyBorrower; (dix) [Reserved]; the loan certificate of each respective Subsidiary, in substantially the form attached hereto as Exhibit A-2, including a ----------- certificate of incumbency with respect to each Authorized Signatory, together with appropriate attachments which shall include, without limitation, the following items: (e) [Reserved]; (fA) a certificate of a Responsible Officer copy of the Servicer certifyingCertificate or Articles of Incorporation of the Subsidiary, respectivelycertified to be true, complete and correct by the appropriate Secretary of State with respect to the Subsidiary (B) certificates of good standing or foreign qualification for the Subsidiary issued by the Secretary of State or similar state official for each state in which the Subsidiary is required to qualify to do business, (iC) a true, complete and correct copy of the By-Laws of the Subsidiary, as to its Constituent Documentsin effect on the Agreement Date, (iiD) as a true, complete and correct copy of the resolutions of the Subsidiary authorizing it to its resolutions or other action of its board of directors or members approving execute, deliver and perform this Agreement and the other Facility Loan Documents to which it is and (E) a party and the transactions contemplated hereby and therebytrue, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true complete and correct copy of any shareholders' agreements or voting trust agreements in all material respects as effect with respect to the stock of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partySubsidiary; (gx) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC UCC-1 lien and judgment search results with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel respect to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent Borrower and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been establishedSubsidiaries for Xxxxxx County, Georgia and the Account Control Agreement shall have been executed and delivered by the BorrowerSpalding County, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this AgreementGeorgia; and (iiixi) upon grant all such other documents as the Lender may reasonably request, certified by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens an appropriate governmental official or as permitted by this Agreement; andan Authorized Signatory if so requested. (nb) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any The Lender shall have reasonably requestedreceived payment of all fees due and payable on the Agreement Date. (c) There shall have occurred no Materially Adverse Effect and no event which, in the reasonable opinion of the Lender, may be expected to have a Materially Adverse Effect.

Appears in 1 contract

Samples: Loan Agreement (Metrotrans Corp)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial the Initial Advance hereunder shall be is subject to Lender’s determination that each of the following conditions precedent that has been satisfied: (a) The Coverage and LTV Tests are satisfied; (b) Delivery to the Administrative Agent shall have received on or before Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed and delivered original copies of the Closing Date Initial Security Instruments covering the followingInitial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, each and other appropriate instruments, in form and substance reasonably satisfactory to Lender and in form proper for recordation, as may be necessary in the Administrative Agent: (a) each opinion of Lender to perfect the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered Liens created by the parties theretoapplicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, which shall each be and the payment of all taxes, fees and other charges payable in full force connection with such execution, delivery, recording and effectfiling; (bc) true Receipt by Lender of any Lender required subordination, non-disturbance and complete copies attornment agreements and/or estoppel certificates with respect to any commercial leases or ground leases (if any) affecting the Initial Mortgaged Property, provided that with respect to the Initial Mortgaged Properties, Lender shall not require subordination, non-disturbance and attornment agreements on the commercial leases in place as of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Initial Closing Date; (cd) a certificate of a Responsible Officer Receipt by Lender of the Borrower certifying (i) as portion of the Origination Fee due pursuant to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement Section 10.01 and the other Facility Documents Initial Due Diligence Fees pursuant to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier dateSection 10.02(a), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved];; and (e) [Reserved]; (f) a certificate Receipt by Lender of a Responsible Officer documentation acceptable to Lender evidencing the status of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except environmental issues pertaining to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as dry cleaners adjacent to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, Mortgaged Property commonly known as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedXxxxxx Xxxxx.

Appears in 1 contract

Samples: Master Credit Facility Agreement (Bre Properties Inc /Md/)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject In addition to the conditions precedent that set forth in Section 6.2, Lender shall not be required to fund any requested Advance until each of the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentfollowing conditions has been satisfied: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Each Loan Document shall be delivered directly to the Collateral Agent) have been duly executed and delivered to Lender by each of the parties signatories thereto, which and Borrower and Guarantors shall each be in full force and effect;compliance with all terms thereof. (b) true Lender shall have received a certificate, in form and complete substance satisfactory to it, from a Responsible Officer certifying: (i) as to (A) copies of Borrower’s certificate of incorporation filed with the Constituent Documents State of the Delaware, and Borrower’s by-laws, the Equityholder and the Servicer each as in effect on the Closing Date; , (cB) a certificate all resolutions adopted by the Borrower’s board of a Responsible Officer directors authorizing the execution and delivery of the Borrower certifying Loan Documents and any other resolutions adopted with respect to this credit facility, and (iC) as to its Constituent the incumbency (including specimen signatures) of the Responsible Officers executing the Loan Documents, ; and (ii) as that, after giving effect to its resolutions or other action of its designated manager approving this Agreement the initial Advance and the other Facility Documents to which it is a party and the transactions contemplated hereby and therebyhereunder, (iiiA) that its no Default or Event of Default exists; (B) the representations and warranties set forth in the Facility Documents to which it is a party Section 7 are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, respects; and (vC) as Borrower has complied with all agreements and conditions to be satisfied by it under the incumbency Loan Documents. (c) Lender shall have completed its business, financial and specimen signature legal due diligence of each Borrower with results satisfactory to Lender. No material adverse change in the financial condition of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Borrower shall have occurred since March 31, 2019. (d) [Reserved];Borrower shall have paid all fees and expenses to be paid to Lender under this Agreement on the Closing Date. (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts Borrower shall have been established, and the Account Control Agreement shall have been executed issued and delivered by to Lender the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedWarrant.

Appears in 1 contract

Samples: Loan Agreement (Audioeye Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender the Banks to undertake the Commitment and to make its the initial Advance hereunder shall be is subject to the conditions precedent prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Banks: (i) duly executed Notes; (ii) the opinion of counsel to the Borrower addressed to each Bank and the Administrative Agent substantially in the form of Exhibit C attached hereto; (iii) the duly executed Request for Advance for the initial Advance of the Loans; (iv) the loan certificate of the Borrower, including a certificate of incumbency with respect to each Authorized Signatory of the Borrower, which shall be in substantially the form attached hereto as Exhibit D hereto, together with appropriate attachments which shall include without limitation, the following items: (A) a copy of the Certificate or Articles of Incorporation of the Borrower, certified to be true, complete and correct by the appropriate Secretary of State, (B) a true, complete and correct copy of the By-Laws of the Borrower, as in effect on the date hereof, (C) a true, complete and correct copy of the resolutions of the Borrower authorizing it to execute, deliver and perform this Agreement and the other Loan Documents to which it is party, (D) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the state of incorporation of the Borrower and for each state in which the Borrower is qualified to do business, (E) a true, complete and correct copy of any shareholders' agreement or voting trust agreement in effect with respect to the stock of the Borrower, and (F) a true, complete and correct description of all Liens of record on the Agreement Date; (v) audited financial statements for the Borrower for the calendar year ended December 31, 1994, and the unaudited financial statements for the Borrower for the quarter ended September 30, 1995; (vi) receipt by the Administrative Agent and the Banks of all appropriate fees to be paid to them by the Borrower on or prior to the Agreement Date; (vii) any required consents to the closing of this Agreement or to the execution, delivery and performance of this Agreement and the other Loan Documents, each of which shall be in form and substance satisfactory to the Administrative Agent and the Banks; (viii) pay off letters and duly executed UCC-3 releases and other forms of satisfaction terminating any Liens (other than Permitted Liens) on the Negative Pledge Properties; and (ix) all such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or Authorized Signatory if so requested. (b) The Administrative Agent shall have received evidence satisfactory to it that all material Necessary Authorizations, including all necessary consents to the closing of this Agreement, have been obtained or made, are in full force and effect and are not subject to any pending or, to the knowledge of the Borrower, threatened reversal or cancellation, and the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent: (a) each a certificate of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;an Authorized Signatory so stating. (c) a certificate of a Responsible Officer The Borrower shall certify to the Administrative Agent and the Banks that each of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party Article 4 hereof are true and correct in all material respects as of the Closing Agreement Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default then exists or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Loan Agreement (Irt Property Co)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial the Initial Advance hereunder shall be is subject to the following conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentprecedent: (a) each Receipt by Lender of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly fully executed and delivered by the parties thereto, which shall each be in full force and effectAdvance Request; (b) true and complete copies If the Initial Advance is a Variable Advance, receipt by Lender at least five (5) days prior to the Initial Closing Date, of the Constituent Documents confirmation of an Interest Rate Cap commitment, in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Borrower, the Equityholder and the Servicer as in effect on the Initial Closing Date; (c) a certificate of a Responsible Officer of If the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it Initial Advance is a party and Variable Advance, receipt by Lender of Interest Rate Cap Documents in accordance with the transactions contemplated hereby and therebyPledge, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects Interest Rate Cap Agreement, effective as of the Initial Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyDate; (d) [Reserved]If the Initial Advance is a Fixed Advance, delivery of a Fixed Facility Note, duly executed by Borrower, in the amount and reflecting all of the terms of the Fixed Advance; (e) [Reserved]Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Borrower Documents required by Lender, including duly executed and delivered original copies of the Variable Facility Note (if applicable), a Fixed Facility Note (if applicable), the Guaranty, the Initial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, and other appropriate instruments, in form and substance satisfactory to Lender and in form proper for recordation, as may be necessary in the opinion of Lender to perfect the Liens created by the applicable Security Instruments and any other Borrower Documents creating a Lien in favor of Lender, and the payment of all taxes, fees and other charges payable in connection with such execution, delivery, recording and filing; (f) If the Initial Advance is a certificate of a Responsible Officer Variable Advance, receipt by Lender of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action first installment of its board of directors or members approving this Agreement Variable Facility Fee and the other Facility Documents entire Discount payable by Borrower pursuant to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partySection 1.04; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State Receipt by Lender of the State of Delaware Initial Origination Fee pursuant to Section 10.03(a) and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order Initial Due Diligence Fee pursuant to perfect the interests in the Collateral contemplated by this Agreement;Section 10.04(a); and (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each Satisfaction of the Secured Parties) conditions set forth in Section 2A.01 and Section 6.03A for the maintenance of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent Initial Credit Enhancement Instrument and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all addition of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged Initial Bond Property to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedPool.

Appears in 1 contract

Samples: Master Credit Facility and Reimbursement Agreement (America First Apartment Investors Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Borrower shall be have delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]Borrower shall have delivered a duly executed Amended and Restated Intellectual Property Security Agreement; (ec) [Reserved]; (f) Borrower shall have delivered its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State States of California and Delaware and any other applicable filing office in any applicable jurisdiction that as of a date no earlier than thirty (30) days prior to the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementEffective Date; (hd) copies of proper financing statement amendments (or Borrower shall have delivered duly executed original signatures to the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the completed Borrowing Resolutions for Borrower, the Equityholder or any transferor; (ie) legal opinions Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (addressed to each of including any UCC termination statements) that the Secured Parties) of counsel to Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the Borrowerinitial Advance, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestwill be terminated or released; (jf) Borrower shall have delivered the Perfection Certificate executed by Borrower; (g) Borrower shall have delivered evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.5 hereof are in full force and effect; (k) , together with appropriate evidence that (i) all fees and expenses due and showing lender’s loss payable to each Lender on and/or additional insured clauses or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses endorsements in favor of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this AgreementBank; and (iiih) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedpaid the fees and Bank Expenses then due as specified in Section 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Interlink Electronics Inc)

Conditions Precedent to Initial Advance. The obligation of each the Lender to make its initial Advance hereunder shall be the Loan is subject to the conditions precedent that each of the Administrative Agent following conditions shall have been satisfied, and the Lender shall have received (or waived receipt) on or before the Closing Date date hereof all of the followingfollowing collateral documents, each in form and substance reasonably satisfactory to the Administrative AgentLender and executed by the appropriate parties: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) The following loan documents duly executed and delivered by Borrower and each Obligor, as the parties theretocase may be, which shall each to Lender: 1) This Loan and Security Agreement; 2) Note (Line of Credit) in principal amount of $1,500,000.00; 3) Acknowledgment of Confession of Judgment as to Note; 4) Guaranty and Surety Agreement of PA1; 5) Such other and further Loan Documents as may be in full force and effectreasonably required by the Lender; (b) true Proof satisfactory to Lender that the PENNVEST Debt Obligation has been funded and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Dateclosed; (c) a certificate The payment by Borrower of a Responsible Officer of all legal, recording, filing fees and other expenses (including but not limited to those relating to appraisals, environmental studies, loan documentation preparation) incurred by the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and Lender in connection with the other Facility Documents to which it is a party Loan and the transactions contemplated hereby thereby; (d) Payment of the Loan Fee(s) referenced in Section 2.02 above; (e) Documentation, in form and therebysubstance satisfactory to the Lender, in and pursuant to which, PA1 has notified PENNVEST that it has irrevocably designated the Project Funding Trust Account as the sole account into which disbursements of Project Funding, including the proceeds of the PENNVEST Debt Obligation, shall be deposited directly by PENNVEST in accordance with the Funding Agreement; (iiif) that its All covenants, representations and warranties set forth made by PA1 and/or Borrower in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except pursuant to the extent such representations Funding Agreement and warranties expressly relate to any earlier date, in which case such representations and warranties other Funding Document shall be true and correct in all material respects on and as of the date of the Initial Advance with the same effect as if made on such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (dg) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its The representations and warranties set forth made to Lender herein, in the Facility other Loan Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier dateother document, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date), and (iv) as to the incumbency and specimen signature date of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC Initial Advance with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreementsame effect as if made on such date; (h) copies The written opinion of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of 's counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying in form and substance reasonably satisfactory to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:Lender's counsel; (i) Establishment of the Borrower is the owner Interest Reserve in accordance with Section 2.07 of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liensthis Agreement; (iij) the Borrower has not assignedReceipt of PA1's detailed construction budget, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreementas reviewed and approved by PENNVEST; and, (iiik) upon grant Such other and further documents as may be required reasonably by the Borrower, Lender in order to consummate the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedtransactions contemplated hereunder.

Appears in 1 contract

Samples: Loan and Security Agreement (Bion Environmental Technologies Inc)

Conditions Precedent to Initial Advance. L/C, or L/C Guaranty. The obligation of each Lender Foothill to make its the initial Advance hereunder shall be advance or to provide the initial L/C or L/C Guaranty is subject to the fulfillment, to the satisfaction of Foothill and its counsel, of each of the following conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative AgentDate: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Closing Date shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties theretooccur on or before December 31, which shall each be in full force and effect1995; (b) true Old Lender shall have executed and complete copies delivered the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination of its liens and security interests in and to the Constituent Documents properties and assets of the Borrower, the Equityholder Borrower or a subordination agreement in form and the Servicer as substance satisfactory to Foothill in effect on the Closing Dateits sole discretion; (c) a certificate of a Responsible Officer of All applicable parties and creditors shall have executed and delivered UCC termination statements and other documentation evidencing the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action termination of its designated manager approving this Agreement liens and the other Facility Documents to which it is a party security interests in and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations properties and warranties expressly relate assets of Borrower or a subordination agreement in form and substance satisfactory to any earlier date, Foothill in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partysole discretion; (d) [Reserved]Foothill shall have received searches reflecting the filing of its financing statements; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties Foothill shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to have received each of the Secured Parties) of counsel to the Borrowerfollowing documents, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been establishedduly executed, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and each such document shall be in full force and effect and such other documents and agreements as may be required or deemed necessary by Foothill, duly executed and in full force and effect;: (k) evidence that (i) all fees i. Loan and expenses due Security Agreement with Schedule A-1 - List of Approved Medi-Claim, Inc. Account Debtors and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (Approved Written Contracts Schedule E-1 - Eligible Inventory and Locations Thereof, Schedule P-1 - Permitted Liens, Schedule 5.9 - Litigation and ii) the reasonable . UCC, Tax and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:Judgment Lien Searches on (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; Medi-Mail, Inc. (ii) the Borrower has not assignedFamily Pharmaceuticals of America, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and Inc. (iii) upon grant by the BorrowerMedi-Claim, the Collateral Agent has a first priority perfected security interest in the CollateralInc. (iv) Medi-Phar, except Permitted Liens or as permitted by this Agreement; andInc. (v) Mednet, MPC Corporation (vi) GBK, Inc. (vii) Medical Services Agency, Inc. (viii)The Home Pharmacy (ix) ArcVentures, Inc. (nx) such other opinionsTel-Drug, instrumentsInc. with Secretary of State of Nevada California South Carolina Pennsylvania Illinois South Carolina Maryland Local Searches in/with Cook County, certificates Illinois Cxxxxrland County, Pennsylvania Charleston County, South Carolina iii. Assignment of Trademarks Medi-Mail, Inc. 1-800-RX Delivery 1-800-RX Discount RX for the 90's Medi-Claim Medi-Phar Mednet iv. Lockbox Operating Procedural Agreements and documents from the Borrower Depository Account Agreements as the Agents or any Lender shall have reasonably requested.to Medi-Mail, Inc. in Nevada-First Interstate Bank of Nevada; as to Medi-Mail, Inc. in Chicago-First Chicago Bank and Trust Company; as to Medi-Mail, Inc. in South Carolina-NationsBank; as to Medi-Claim, Inc.- Mellon Bank and Trust Company; as to Medi-Phar, Inc. in Nevada-First-Interstate Bank of Nevada; and as to Medi-Phar, Inc. in California-First Interstate Bank v. UCC Financing Statements With Respect to (i) Medi-Mail, Inc. (ii) Family Pharmaceuticals of America, Inc. (iii) Medi-Claim, Inc. (iv) Medi-Phar, Inc.

Appears in 1 contract

Samples: Loan and Security Agreement (Mednet MPC Corp)

Conditions Precedent to Initial Advance. The obligation of each Lender initial Advances pursuant to make its initial Advance hereunder shall be this Agreement is subject to the conditions condition precedent that each of the Administrative Agent Co-Agents shall have received received, on or before the Closing Date date of such initial Advance, the following, following each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to each of the Administrative AgentCo-Agents: (a) The Sale Agreement, duly executed by the parties thereto; (b) A certificate of the Secretary or Assistant Secretary of each Loan Party certifying the names and true signatures of the officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (on which certificate the Agents and the Lenders may conclusively rely until such time as each of the Facility Documents Co-Agents shall receive from such Loan Party a revised certificate meeting the requirements of this SUBSECTION (b)); (c) The Certificate of Incorporation of each Loan Party, duly certified by the Secretary of State of such Loan Party's state of incorporation, as of a recent date acceptable to Co-Agents in each case together with a copy of the by-laws of such Loan Party, duly certified by the Secretary or an Assistant Secretary of such Loan Party; (d) Copies of good standing certificates for each Loan Party, issued by the Secretaries of State of the state of incorporation of such Loan Party and the state where such Loan Party's principal place of business is located; (e) Acknowledgment copies (or other than the Collateral Agent Fee Letter which shall be delivered directly evidence of filing reasonably acceptable to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) proper financing statements (Form UCC-1), in such form as to the Collateral Agent may reasonably request, naming each of the Originators as debtor and seller of its Constituent DocumentsReceivables and Related Assets, the Borrower as the secured party and purchaser thereof and the Collateral Agent, as agent for the Secured Parties, as assignee, and (ii) financing statements (Form UCC-1), in such form as to its resolutions or other action of its designated manager approving this Agreement the Collateral Agent may reasonably request, naming the Borrower as the debtor and the other Facility Documents Collateral Agent, as agent for the Secured Parties, as the secured party, or other, similar instruments or documents, as may be necessary or, in the opinion of the Collateral Agent desirable under the UCC or any comparable law of all appropriate jurisdictions to which it is a party perfect the sale by each of the Originators to the Borrower of, and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth Collateral Agent's security interest in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]Collateral; (f) a certificate of a Responsible Officer of Search reports provided in writing to the Servicer certifying, respectively, Co-Agents (i) listing all effective financing statements that name any Loan Party as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement debtor and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth are filed in the Facility Documents jurisdictions in which filings were made pursuant to SUBSECTION (e) above and in such other jurisdictions that the Collateral Agent shall reasonably request, together with copies of such financing statements (none of which it is a party are true and correct in all material respects as (other than any of the Closing Date financing statements described in SUBSECTION (except to the extent such representations and warranties expressly relate to e) above) shall cover any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier dateReceivables or Related Assets), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable listing all tax liens and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby judgment liens (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.if

Appears in 1 contract

Samples: Credit and Security Agreement (Interim Services Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender Bank’s agreement to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to Bank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation, subject to the Administrative Agentcondition precedent that Bank shall have received, in form and substance satisfactory to Bank, the following: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Loan Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it Borrower is a party; (b) duly executed original signatures to the Guaranty; (c) duly executed original signatures to the completed Borrowing Certificates for Borrowers, plus, if applicable, all exhibits thereto; (d) [Reserved]duly executed original signatures to the Guarantor Certificates for Guarantors, plus, if applicable, all exhibits thereto; (e) [Reserved];good standing certificate/certificates of foreign qualification from Borrowers, other than EMEA and Guarantors as set forth more specifically on the closing checklist delivered to Borrowers in connection with this Agreement, dated no later than 30 days prior to the Effective Date. (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyPerfection Certificates executed by Borrowers; (g) financing statements (or a legal opinion from counsel to the equivalent thereof US Borrowers and Guarantors, in any applicable foreign jurisdiction, as applicable) a form satisfactory to Bank in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreementall respects; (h) copies Reaffirmations of proper financing statement amendments (or the equivalent thereof existing subordination agreements with holders of Subordinated Debt in any applicable foreign jurisdiction, as applicable), if any, necessary form and substance satisfactory to release Bank in all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorrespects; (i) legal opinions (addressed A Subordination Agreement, duly executed by Xxxxx Charter and Xxxx Xxxxxxxxx, in form and substance acceptable to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestBank in all respects; (j) evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.4 hereof are in full force and effect;, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of Bank; and (k) evidence that (i) all fees such other documents, and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery completion of such Collateral (including any promissory noteother matters, executed assignment agreements and Word as Bank may reasonably deem necessary or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedappropriate.

Appears in 1 contract

Samples: Loan and Security Agreement (Global Telecom & Technology, Inc.)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its the initial Advance hereunder shall be is subject to the fulfillment, to the satisfaction of Lender, of each of the following conditions precedent that the Administrative Agent shall have received on or before the Closing Date Date: (a) Lender shall have received each of the followingfollowing documents, each dated the Closing Date and in form and substance reasonably satisfactory to the Administrative AgentLender: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agenti) duly executed and delivered by the parties thereto, which shall each be in full force and effectcounterpart of this Agreement; (bii) any UCC financing statement; (iii) duly executed Control Agreement and all documents contemplated thereby; (iv) duly executed Customer Account Agreement and all documents contemplated thereby; (v) duly executed Custody Agreement; (vi) certified copies of (A) the Organization Documents (including any amendments or supplements thereto) of Borrower, (B) resolutions authorizing and approving the execution, delivery and performance by Borrower of this Agreement, the Control Agreement, the Customer Account Agreement and the Advances hereunder, (C) the Investment Management Agreement between Borrower and Investment Adviser, and (D) documents evidencing all other company action, governmental approvals and third-party consents required to effectuate this transaction, if any, with respect to this Agreement, and any other Facility Document; (vii) certificates of Borrower and Investment Adviser certifying the names and true signatures of the Responsible Officers of Borrower and complete Investment Adviser authorized to sign this Agreement, any other Facility Documents, or any other document to be delivered hereunder or thereunder; (viii) copies of the Constituent Organization Documents (including any amendments or supplements thereto, but excluding the operating agreement or the equivalent) of the Borrower, the Equityholder and the Servicer Investment Adviser certified as in effect on of a recent date not more than thirty (30) days prior to the Closing Date; (cix) a certificate certificates evidencing the good standing of a Responsible Officer Borrower and Investment Adviser in its jurisdiction of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or formation and each other action of its designated manager approving this Agreement and the other Facility Documents to which material jurisdiction where it is qualified to do business dated a party and the transactions contemplated hereby and thereby, date not earlier than ten (iii10) that its representations and warranties set forth in the Facility Documents Business Days prior to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency good standing of Borrower and specimen signature Investment Adviser; (x) an opinion of each counsel to Borrower in form and substance reasonably satisfactory to Lender; and (xi) the results of Lien searches on Borrower in Delaware, obtained by and reasonably satisfactory to Lender. (b) evidence reasonably satisfactory to Lender that the Collateral Account has been established; (c) evidence reasonably satisfactory to Lender that Borrower has offered to purchase 100% of its Responsible Officers authorized to execute the Facility Documents to which it is a partyoutstanding AMPS either by tender or redemption; (d) [Reserved];evidence reasonably satisfactory to Lender that Borrower or any of its Affiliates has made the public disclosure regarding the tender or redemption of the AMPS and such public disclosure contains a statement acceptable to Lender detailing (i) the use of the proceeds of this Facility to satisfy, in whole or in part, the purchase price or redemption of the AMPS, (ii) any BofAML Entity’s potential ownership of the AMPS (which it may or may not deliver into the offer to purchase by tender financed with the proceeds of this Facility), and (iii) any other material relationship or related party transaction that Borrower may have with any BofAML Entity; and (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as all fees required to its Constituent Documents, (ii) as to its resolutions be paid on or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of before the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Margin Loan Agreement (Advent Claymore Convertible Securities & Income Fund II)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLoan Documents; (b) true Borrower’s Operating Documents and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a good standing certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with certified by the Secretary of State of the State of Delaware and as of a date no earlier than thirty (30) days prior to the Effective Date; (c) duly executed original signatures to the completed Borrowing Resolutions for Borrower; (d) duly executed Control Agreements for any other applicable filing office domestic accounts maintained outside Bank; (e) certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Advance, will be terminated or desirable released; (f) the Perfection Certificate of Borrower, together with the duly executed original signatures thereto; (g) landlord’s consents in order to perfect favor of Bank, together with the interests in the Collateral contemplated by this Agreementduly executed original signature thereto, for Borrower’s Bothell, Washington and Deerfield, Wisconsin facilities; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.7 hereof are in full force and effect; (k) , together with appropriate evidence that (i) all fees and expenses due and showing lender loss payable to each Lender on and/or additional insured clauses or prior to the Closing Date have been received or will be received contemporaneously with the Closing Dateendorsements in favor of Bank; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) payment of the Borrower is the owner of such Collateral free fees and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest Bank Expenses then due as specified in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Cardiac Science CORP)

Conditions Precedent to Initial Advance. The obligation of each Lender the Lenders to undertake the Commitment and to make its the initial Advance hereunder shall be is subject to the conditions precedent that prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received on or before the Closing Date each of the following, each in form and substance reasonably satisfactory to the Administrative AgentAgent and its counsel: (ai) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents The loan certificate of the Borrower, in substantially the Equityholder form attached hereto as EXHIBIT O, including a certificate of incumbency with respect to each Authorized Signatory, together with appropriate attachments which shall include, without limitation, the following items: (A) a copy of the certificate of incorporation of the Borrower, certified to be true, complete and correct by the Servicer Secretary of State of Delaware, (B) a copy of the by-laws of the Borrower as in effect on the Closing Agreement Date; , (cC) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the State of Delaware and for each other state in which the Borrower is required to qualify or has qualified to do business, (D) a certificate of a Responsible Officer true, complete and correct copy of the Borrower certifying (i) as authorizing resolutions of the Borrower, authorizing it to its Constituent Documentsexecute, (ii) as to its resolutions or other action of its designated manager approving deliver and perform this Agreement and the other Facility Loan Documents to which it is a party party, and (E) a true, complete and correct copy of any agreement in effect with respect to the transactions contemplated hereby and therebyvoting rights, ownership interests, or management of the Borrower; (ii) Duly executed Subordination Agreement; (iii) that its representations and warranties set forth Duly executed Note to the order of each Lender in the Facility Documents to which it is a party are true and correct in all material respects as amount of such Lender's pro rata share of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), Commitment; (iv) that no Default Duly executed Borrower's Pledge Agreement, together with any appropriate stock certificates and undated stock powers executed in blank; (v) Duly executed Security Agreement; (vi) Lien search results with respect to the Borrower and each Subsidiary from all appropriate jurisdictions and filing offices; (vii) Original UCC-1 financing statements, signed by the Borrower as debtor and naming the Administrative Agent as secured party to be filed in all appropriate jurisdictions; (viii) A loan certificate from each Subsidiary of the Borrower, in substantially the form attached hereto as EXHIBIT P, including a certificate of incumbency with respect to each officer authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which shall include, without limitation, the following items: (A) a copy of the certificate or Event articles of Default has occurred incorporation of such Subsidiary, certified to be true, complete and correct by the Secretary of State from the jurisdiction of incorporation of such Subsidiary, (B) certificates of good standing for such Subsidiary issued by the Secretary of State or similar state official for each state in which such Subsidiary is continuingincorporated or required to qualify to do business, (C) a true, complete and correct copy of the By-Laws of such Subsidiary, and (vD) as a true, complete and correct copy of the resolutions of such Subsidiary authorizing it to execute, deliver and perform the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (dix) [Reserved]A duly executed Subsidiary Security Agreement, executed and delivered by each Guarantying Subsidiary of the Borrower; (ex) [Reserved]Original UCC-1 financing statements, signed by each Guarantying Subsidiary, respectively, as debtor, and naming the Administrative Agent as secured party to be filed in all appropriate jurisdictions; (fxi) a certificate of a Responsible Officer A duly executed Subsidiary Guaranty executed and delivered by each Guarantying Subsidiary of the Servicer certifyingBorrower; (xii) A duly executed Subsidiary Pledge Agreement from any Guarantying Subsidiary of the Borrower which has one or more corporate Subsidiaries, together with appropriate stock certificates and undated stock powers executed in blank; (xiii) A duly executed Assignment of Utility Contract from the Borrower with respect to its rights under the Utility Contract, and together with appropriate UCC-l financing statement forms and other appropriate forms of perfection; (xiv) A certificate executed by the Borrower and KCPL in form and substance satisfactory to the Administrative Agent certifying that the Borrower is not in default under the KCPL Contract in any material respect and attaching a true, correct and complete copy of the KCPL Contract; (xv) Proof of payment of all title insurance premiums, documentary stamp or intangible taxes, recording fees and mortgage taxes payable in connection with the recording of any of the Loan Documents or the issuance of the title insurance commitments referred to above (whether due on the Agreement Date or in the future) including such sums, if any, due in connection with any future Advances; (xvi) Copies of any existing environmental reviews and audits with respect to Property owned by the Borrower and other information pertaining to actual or potential environmental claims as Administrative Agent may require; (xvii) Copies of insurance binders or certificates covering the assets of the Borrower and its Subsidiaries, naming the Administrative Agent as additional insured or named loss payee, as applicable, and otherwise meeting the requirements of Section 5.5 hereof; (xviii) Legal opinions of (A) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel to the Borrower and the Subsidiaries, regarding, among other things, the absence of conflict between the Loan Documents CellNet's high-yield debt documents and instruments including the Indenture, and (B) Wilkinson, Barker, Xxxxxx & Xxxxx, LLP, FCC counsel to the Borrower and the Subsidiaries, in each case addressed to each Lender and the Administrative Agent, and dated as of the Agreement Date, in substantially the forms attached hereto as EXHIBITS Q AND R, respectively; (xix) Duly executed Request for Advance for the initial Advance of the Loans, which Request for Advance shall include calculations demonstrating, as of the Agreement Date, and after giving effect to the funding of the initial Advance hereunder and other payments being made and effected as of the Agreement Date, the Borrower's pro forma compliance with Sections 7.10, 7.11, 7.12 and 7.13 hereof; (ixx) as to Duly executed Use of Proceeds Letter; (xxi) Duly executed Certificate of Financial Condition for the Borrower and its Constituent DocumentsSubsidiaries on a consolidated basis, given by the chief financial officer of the Borrower which shall include a certification that no event has occurred which could have a Materially Adverse Effect since June 30, 1998; (iixxii) as to Audited financial statements of the Borrower and its resolutions Subsidiaries on a consolidated basis for the fiscal year ended December 31, 1997, and an unaudited balance sheet and income statement of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ended June 30, 1998, demonstrating that CellNet has made an equity investment in the Borrower in an amount not less than $60,000,000; (xxiii) Copies of any pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the satisfaction in full of all pre-existing Indebtedness for Money Borrowed (except for Permitted Debt and CellNet Subordinated Debt) of the Borrower and its Subsidiaries, and the termination of any Liens (other than Permitted Liens) on the assets of the Borrower or other action any of its board Subsidiaries including Liens securing the Indebtedness for Money Borrowed being refinanced by the initial Advance; (xxiv) Comfort Letter from CellNet, in form and substance satisfactory to the Lenders; (xxv) Operating and financial projections of directors the Borrower indicating future compliance with all applicable covenants during the term of this Agreement; and (xxvi) All such other documents as either the Administrative Agent or members approving any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested. (b) The Administrative Agent shall have received evidence satisfactory to it that the Borrower has obtained all technically compatible FCC spectrum allocations necessary to operate a wireless data transmission system for KCPL and that all Necessary Authorizations, including all necessary consents to the execution, delivery and performance by the Borrower of this Agreement and the other Facility Loan Documents to which it is a party and by the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in Subsidiaries of the Facility Loan Documents to which it is a party they are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier dateparties, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been establishedobtained or made, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be are in full force and effect;effect and are not subject to any pending or, threatened reversal or cancellation prior to its stated termination date, and the Administrative Agent shall have received a certificate of an Authorized Signatory so stating. (kc) evidence that The Administrative Agent shall be satisfied with all terms and conditions, including any subordination provisions, of all Indebtedness of CellNet and all pre-existing Indebtedness (iincluding Permitted Debt and CellNet Subordinated Debt) of the Borrower. (d) The Lenders, the Administrative Agent, and Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, special counsel to the Administrative Agent, shall receive payment of all reasonable fees and expenses due and payable to each Lender on or prior to the Closing Agreement Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses in respect of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedhereby.

Appears in 1 contract

Samples: Loan Agreement (Cellnet Data Systems Inc)

Conditions Precedent to Initial Advance. The effectiveness of this Agreement and the obligation of each Lender the Lenders to undertake the Revolving Loan Commitment, the Term Loan A Commitment and the Term Loan B Commitment and to make its the initial Advance hereunder shall be are subject to the conditions precedent that prior or contemporaneous fulfillment of each of the following conditions (a) The Administrative Agent and the Lenders shall have received each of the following: (i) this Agreement duly executed; (ii) duly executed Borrower Pledge Agreement; (iii) duly executed Borrower Security Agreement; (iv) duly executed Guaranties; (v) duly executed Guarantor Security Agreement; (vi) duly executed Guarantor Pledge Agreement; (vii) duly executed Mortgages for all Real Property set forth on Schedule 4; (viii) duly executed copy of landlord waivers in form and substance satisfactory to the Administrative Agent shall have received on or before as may be required by Section 7.12; (ix) duly executed control agreements with respect to investment accounts, securities accounts and deposit accounts to the Closing Date the following, each extent required by Section 7.16 hereof (in form and substance reasonably satisfactory to the Administrative Agent:); (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agentx) duly executed copy of that certain fee letter by and delivered by between the parties thereto, which shall each be in full force Borrower and effectthe Administrative Agent; (bxi) true and complete copies loan certificate of the Constituent Documents Borrower dated as of the BorrowerAgreement Date, in substantially the Equityholder form attached hereto as Exhibit I, 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 Servicer certificate of formation and operating agreement of the Borrower as in effect on the Closing Agreement Date; , (cB) a certificate certificates of a Responsible Officer good standing for the Borrower issued by the Secretary of State or similar state official for the state of formation of the Borrower certifying (i) as and for each state in which the failure by the Borrower to its Constituent Documentsqualify to do business could reasonably be expected to have a Materially Adverse Effect, (iiC) as a true, complete and correct copy of the corporate resolutions of the Borrower authorizing the Borrower to its resolutions or other action of its designated manager approving execute, deliver and perform this Agreement and the other Facility Documents Loan Documents, and (D) a true, complete and correct copy of any agreements or voting trust agreements in effect with respect to which it is a party the Ownership Interests of the Borrower; (xii) legal opinion of Xxxxxx & Bird LLP, counsel to the Borrower, addressed to each Lender and the transactions contemplated hereby Administrative Agent and therebydated as of the Agreement Date in form and substance satisfactory to the Administrative Agent and the Lenders; (xiii) legal opinion of local counsel to the Borrower in the States of Virginia and South Carolina, addressed to each Lender and the Administrative Agent and dated as of the Agreement Date in form and substance satisfactory to the Administrative Agent and the Lenders (iiixiv) duly executed Certificate of Financial Condition, in substantially the form attached hereto as Exhibit B, for the Borrower and its Subsidiaries on a consolidated basis, given by a duly Authorized Signatory of the Borrower, and such other information pertaining to the capital and corporate structure of the Borrower, any Guarantor or any of its Subsidiaries as the Administrative Agent or the Lenders shall request; (xv) copies of insurance binders or certificates covering the assets of the Borrower and its Subsidiaries and otherwise meeting the requirements of this Agreement; (xvi) lien and judgment search results satisfactory to the Administrative Agent and the Lenders with respect to each Guarantor, the Borrower and each of the Borrower’s Subsidiaries; (xvii) delivery to the Administrative Agent of all possessory collateral, including, without limitation, any pledged notes or pledged stock; (xviii) delivery of a business plan of the Borrower, which plan shall be in form and substance satisfactory to the Lenders, with annual projections for at least the four (4) year period following the Agreement Date and a comprehensive cash-flow model; (xix) unaudited financial statements of the Borrower and its Subsidiaries for the fiscal quarter period ended September 30, 2007, which shall be in form and substance satisfactory to the Administrative Agent and the Lenders; and (xx) all other such documents as the Administrative Agent or any Lender may reasonably request. (b) The Administrative Agent and the Lenders shall have received evidence satisfactory to them that its all Necessary Authorizations, including all necessary consents to the closing of this Agreement, have been obtained or made, are in full force and effect and are not subject to any pending or, to the knowledge of the Borrower, threatened reversal or cancellation. (c) Each of the representations and warranties set forth in the Facility Documents to which it is a party Article 4 hereof are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier datedate hereof, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and then exists or is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;. (d) [Reserved];The Borrower shall have paid to the Administrative Agent on the Agreement Date, using proceeds from a Revolving Loan all fees in connection with this Agreement due and payable to the Administrative Agent and the Lenders on the Agreement Date. (e) [Reserved];The Administrative Agent shall have received evidence satisfactory to it that the Borrower has received proceeds from an equity contribution in the Borrower in an aggregate gross amount of not less than $25,000,000 by US Parent. (f) a certificate of a Responsible Officer of The Administrative Agent shall have received the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Term Loan B Proceeds. (g) financing statements The Administrative Agent shall have received at least five (or 5) Business Days prior to the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Agreement Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, but not limited to, the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;USA PATRIOT Act. (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the The Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been establishedreceived a pay off letter from Xxxxx Fargo Foothill, Inc. in form and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel substance satisfactory to the Administrative Agent, providing that, upon repayment, all Indebtedness of the Borrower owed to Xxxxx Fargo Foothill, Inc. pursuant to the WFF Loan Agreement by the Borrower and its Subsidiaries, if any, shall be released from any liability in respect of such Indebtedness, and all Liens on the assets securing such Indebtedness shall be released pursuant to UCC-3 termination statements and other instruments as shall be suitable or appropriate in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedtherewith.

Appears in 1 contract

Samples: Loan Agreement (BGF Industries Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Borrower shall consent to or shall have received on or before the Closing Date the followingdelivered, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]duly executed original signatures to the Control Agreement(s); (ec) [Reserved]; (f) its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State of Delaware and as of a date no earlier than thirty (30) days prior to the Effective Date; (d) duly executed original signatures to the completed Borrowing Resolutions for Borrower; (e) certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Advance, will be terminated or desirable in order to perfect released; (f) the interests in Perfection Certificate executed by Borrower, together with the Collateral contemplated by this Agreementduly executed original signatures thereto; (g) a legal opinion of Borrower’s counsel dated as of the Effective Date together with the duly executed original signatures thereto; (h) copies evidence satisfactory to Bank that the insurance policies required by Section 6.5 hereof are in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorBank; (i) legal opinions (addressed to each the completion of the Secured Parties) of counsel Initial Audit with results satisfactory to the Borrower, the Equityholder, the Servicer, the Collateral Agent Bank in its sole and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;absolute discretion; and (j) evidence reasonably satisfactory to it that all payment of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses Bank Expenses then due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, as specified in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Bridgeline Software, Inc.)

Conditions Precedent to Initial Advance. The obligation of each the Lender to make its initial Advance hereunder shall be under the Credit Facility is subject to the conditions precedent that the Administrative Agent shall have Lender having received on or before the Closing Date the following, each dated as of a date satisfactory to the Lender and in form and substance reasonably satisfactory to the Administrative AgentLender, provided that such condition precedent, being for the sole benefit of the Lender, may be unilaterally waived by it in whole or in part at any time on or before the date of the initial Advance: (a) each certified copies of the Facility Documents (other than articles and borrowing by-laws of the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties theretoBorrower, which shall each be in full force and effecttogether with a related certificate of non-restriction; (b) true and complete certified copies of the Constituent Documents resolutions of the Borrowerboard of directors of the Borrower approving and authorizing the execution, the Equityholder delivery and the Servicer as in effect on the Closing Dateperformance of this Agreement; (c) a certificate of a Responsible Officer status or like certificate with respect to the Borrower issued by the appropriate Governmental Authority of the Borrower jurisdiction of its incorporation; (d) a certificate of the Secretary or an Assistant Secretary of the Borrower, certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action the names and true signatures of its designated manager approving officers authorized to sign this Agreement and the other Facility Documents Loan Documents; (e) a certificate of a Senior Officer of the Borrower to which it is a party and the transactions contemplated hereby and thereby, (iii) effect that its all representations and warranties of the Borrower set forth in the Facility Documents to which it is a party Article 8 are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]initial Drawdown Date; (f) a certificate of a Responsible Officer of such other certificates and documentation relating to the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions Borrower or other action of its board of directors or members approving this Agreement as separately agreed to by the Borrower and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyLender; (g) financing statements (a certificate of a Senior Officer of the Borrower that there has been no material adverse change in the financial condition or results of operations of the equivalent thereof Borrower and its Subsidiaries, taken as a whole, from the financial condition and results of operations of the Borrower and its Subsidiaries presented in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing DateAudited Financial Statements, under a copy of which has been furnished to the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;Lender; and (h) copies favourable opinion of proper financing statement amendments (or counsel for the equivalent thereof Borrower to and in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each favour of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent Lender in form and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence substance reasonably satisfactory to it that all of the Covered Accounts shall have been established, Lender and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedits counsel.

Appears in 1 contract

Samples: Credit Agreement (Hub International LTD)

Conditions Precedent to Initial Advance. The As a condition precedent to Bank's obligation of each Lender to make its the initial Advance hereunder shall be subject Advance, Borrowers shall, at their expense, deliver the following items to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the followingBank, each of which must be satisfactory to Bank in both form and substance reasonably satisfactory content (the documents referred to in Paragraphs (a) through (c) below are, together with this Credit Agreement and the Administrative Agent:documents referred to in paragraphs (a) and (b) of Section 10, sometimes referred to hereinafter as the "Credit Documents"): (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) The Note duly executed and delivered by the parties thereto, which shall each be in full force and effect;both Borrowers. (b) true and complete copies of the Constituent Documents of the BorrowerTwelve Guaranty Agreements, the Equityholder and the Servicer as in effect on the Closing Date;each duly executed by a different Guarantor. (c) a certificate of a Responsible Officer of A Pledge and Security Agreement (the Borrower certifying "Security Agreement") duly executed by Individual Borrower, together with (i) financing statements (form UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in Bank's opinion, desirable to its Constituent Documents, perfect the security interest created by the Security Agreement; (ii) as certified copies of requests for information or copies (form UCC-11) or equivalent reports listing the financing statements referred to its resolutions in (i) above and no other financing statements covering the Pledged Collateral; (iii) original stock certificates for the Pledged Collateral accompanied by the stock powers required by the Security Agreement; and (iv) whatever consents, approvals, agreements and waivers Bank considers necessary or other action prudent so that the pledge of and security interest in the Pledged Collateral (including any Post-Merger Shares) to and in favor of Bank and Bank's exercise of its designated manager approving this remedies with respect thereto under the Security Agreement will not violate any agreement or law or be otherwise impaired or impeded. (d) Evidence of the completion of all recordings, filings and deliveries as may be necessary, or, in the opinion of Bank, desirable, to perfect the security interests and liens created by the Security Agreement. EXHIBIT 10.4(C) (e) Whatever certificates, resolutions and other Facility evidence Bank may require regarding the organization and existence of Entity Borrower and each Guarantor and regarding the authority and power of each to enter into and perform the Credit Documents and other related documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved];signatory. (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement Current financial statements and the other Facility Documents to which it is a party income verifications for each Borrower and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Guarantor. (g) financing statements (or the equivalent thereof in any applicable foreign jurisdictionA favorable opinion of Axxxxx & Zxxxx, as applicable) in proper form P.A., counsel for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware each Borrower and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the CustodianGuarantor, covering such matters as the Administrative Agent and its counsel shall reasonably Bank may request;. (jh) evidence reasonably satisfactory Such other approvals, consents, certificates, opinions and documents as Bank may request. In addition, Bank's obligation to make the initial Advance is conditioned upon its being satisfied, in its discretion, with the reports it that all receives regarding each Borrower and each Guarantor from whatever banks or other creditors it makes inquiries of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be fulfillment of any additional conditions precedent set forth in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior any commitment letter relating to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses line of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions credit contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedhereby.

Appears in 1 contract

Samples: Credit Agreement (Terremark Fortune House 2 LTD)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to Bank the Administrative Agent:following (it being understood that where signatures are required to be provided, such signatures may be in pdf form provided that original signature pages are delivered to Bank within two (2) Business Days of the Closing Date): (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrowersignatures to this Agreement, the Equityholder IP Agreement, the Guaranty, the Perfection Certificate, and the Servicer as in effect any note, or notes or other guaranties executed by any Credit Party on the Closing Date; (b) [Reserved] (c) a certificate the Operating Documents and long-form good standing certificates of each Credit Party certified by the Secretary of State (or equivalent agency) of such Credit Party’s jurisdiction of organization or formation, each as of a Responsible Officer of the Borrower certifying date no earlier than thirty (i30) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except days prior to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyEffective Date; (d) [Reserved]duly executed signatures to the completed Borrowing Resolutions for each Credit Party; (e) [Reserved]certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (including any Code termination statements) that the Liens indicated in any such financing statements (other than Permitted Liens) have been or, in connection with the initial Advance, will be terminated or released; (f) a certificate opinions of a Responsible Officer of counsel to the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects Credit Parties dated as of the Closing Effective Date (except to together with the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyduly executed signatures thereto; (g) financing statements evidence satisfactory to Bank that the insurance policies (or the equivalent thereof other than in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State respect of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and endorsements thereto which shall be delivered pursuant to Section 6.14(b)) required by Section 6.6 hereof are in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iiih) upon grant by payment of the Borrowerfees and Bank Expenses then due, the Collateral Agent has a first priority perfected security interest in the Collateraleach case, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedspecified in Section 2.5 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Rosetta Stone Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLoan Documents; (b) true Borrower’s Operating Documents and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a good standing certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with certified by the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that as of a date no earlier than thirty (30) days prior to the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementEffective Date; (hc) copies of proper financing statement amendments (or duly executed original signatures to the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the completed Borrowing Resolutions for Borrower, the Equityholder or any transferor; (id) legal opinions certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (addressed to each of including any UCC termination statements) that the Secured Parties) of counsel to Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the Borrowerinitial Advance, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestwill be terminated or released; (je) evidence reasonably satisfactory to it the Perfection Certificate(s) of Borrower and Guarantor, together with the duly executed original signatures thereto; (f) confirm that all the bailee waivers in favor of Bank for the Covered Accounts shall have been establishedIBM foundry in Burlington, and the Account Control Agreement shall have been executed and delivered Vermont by the Borrowerrespective landlord thereof, the Collateral Agent and the Custodian and shall be is still in full force and effect; (kg) evidence that (i) all fees and expenses due and payable to each Lender on or prior duly executed original signatures to the Closing Date have been received or will be received contemporaneously Guaranty and the Security Agreement, together with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel duly executed original signatures to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrowercompleted Borrowing Resolutions for Guarantor; (lh) delivery evidence satisfactory to Bank that the insurance policies required by Section 6.7 hereof are in full force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effectedBank; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) Borrower shall have entered into the Borrower is EXIM Loan and shall have delivered the owner of such Collateral free EXIM Loan Agreement and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest all other documents executed in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant connection therewith to this AgreementBank; and (iiij) upon grant by payment of the Borrower, the Collateral Agent has a first priority perfected security interest fees and Bank Expenses then due as specified in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Ramtron International Corp)

Conditions Precedent to Initial Advance. The obligation of each Lender Lender’s agreement to make its initial the Initial Advance hereunder shall be is subject to to, among other things, the conditions condition precedent that the Administrative Agent Lender shall have received received, in form and substance satisfactory to Lender, such documents, and completion of such other matters, including satisfactory completion of all necessary due diligence on the Borrower, its business and the Collateral, as Lender may deem necessary or before the Closing Date appropriate, including, without limitation, the following, each, as applicable, duly executed and delivered to Lender: (a) this Agreement (including all schedules and exhibits hereto); (b) a Note representing the Initial Advance; (c) an Officer’s Certificate of Borrower certifying to the following: (i) incumbency; (ii) Organizational Documents; and (iii) borrowing resolutions of Borrower; (d) a Good Standing Certificate from the State of Delaware (and an equivalent certificate from each jurisdiction where Borrower is authorized to do business); (i) Account Control Agreements covering each of the Collections Account and the Operating Accounts (and any other Secured Bank Account) evidencing, that Lender has “control” (as such term is defined in the Code) of or an otherwise perfected lien on each of the Collections Account and the Operating Accounts (and any other Secured Bank Account) and (ii) any additional bank or account documentation necessary and sufficient to provide Lender (or an agent thereof) with access to and rights in each of the Collections Account and the Operating Accounts (and any other Secured Bank Account) in accordance with the terms hereof and any corresponding Account Control Agreement; (f) [reserved;] (g) the Patent, Trademark and Copyright Security Agreement; (h) the Warrant; (i) a Subordination Agreement, in form and substance reasonably satisfactory to the Administrative Agent: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed Lender, among Agility Capital II, LLC, Lender and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effecta current Monthly Reporting Package; (k) evidence that (i) all fees Code lien, judgment, bankruptcy and expenses due tax lien searches of Borrower, reasonably satisfactory to Lender and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrowerits counsel; (l) delivery of such Collateral (including any promissory notethe insurance certificates, executed assignment agreements endorsements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effectedrelated information required under Section 6.4 hereof; (m) a certificate of a Responsible Officer of Lockbox Agreement, provided that the Borrower, dated as of Lockbox is not already covered by the Closing Date, certifying to Account Control Agreement governing the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted LiensCollections Account; (iin) a payoff letter from Pacific Western Bank and evidence reasonably acceptable to Lender that, substantially simultaneous with the Initial Advance, Pacific Western Bank shall be paid in full and all agreements evidencing the Indebtedness owing by Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been to Pacific Western Bank shall be terminated and all Liens thereunder released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (no) such other opinionsagreements, instrumentsincluding, certificates but not limited to any subordination agreements, documents, and documents from completion of such other matters, including but not limited to the Borrower payoff of any prior existing Indebtedness and corresponding releases, and/or additional information (which may include items delivered to Lender in connection with any Escrow Agreement and the transactions contemplated thereunder), as the Agents Lender may reasonably deem necessary or any Lender shall have reasonably requestedappropriate.

Appears in 1 contract

Samples: Loan and Security Agreement (Accelerize Inc.)

Conditions Precedent to Initial Advance. The obligation of each Lender the Bank to make its the initial Advance hereunder shall be and the Term Loan is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before each and every one of the Closing Date the following, each following in form and substance reasonably satisfactory to the Administrative AgentBank: (a) each Each of the Facility Loan Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) The representations and warranties of the Borrowers set forth herein shall be true and complete copies correct as of the Constituent Documents date of the Borrower, the Equityholder first Advance and the Servicer date the Term Loan is made as in effect if made on and as of such date, and the Closing Daterequest for an Advance by the Borrowers and the making of the Term Loan shall be deemed a representation and warranty by the Borrowers to such effect; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no No Default or Event of Default has occurred and is continuing, and (v) continuing as to of the incumbency and specimen signature date of each of its Responsible Officers authorized to execute the Facility Documents to which it first Advance or the date the Term Loan is a partymade; (d) [Reserved]There is and has been no material adverse change in the either Borrower's financial condition, results of operations, business prospects or otherwise which would, in the judgment of the Bank, impair such Borrower's ability to repay all or any portion of the Notes; (e) [Reserved]No further action, including any filing or recording of any agreement, document or instrument, is necessary to establish and perfect the Bank's lien and priority in the Collateral; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except The Borrowers shall submit to the extent such representations Bank, all reports and warranties expressly relate documents required to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as submitted to the incumbency and specimen signature Bank by the Borrowers pursuant to Section 5.8 of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partythis Agreement; (g) financing statements An originally executed copy of this Agreement, the Line of Credit Note, the Term Note and each of the other Loan Documents; (or h) A copy of the equivalent thereof in any applicable foreign jurisdictioncertificate of incorporation and by-laws of each Borrower, certified as applicable) in proper form for filing on a true copy by the Closing Date, under the UCC with Secretary of each Borrower and the Secretary of State of each Borrower's state of incorporation; (i) A good standing certificate with respect to each Borrower issued as of a recent date by the Secretary of State of Delaware each state in which such Borrower is required to be authorized to do business; (j) A certificate of the Secretary of each Borrower certifying the names and any true signatures of the officers of such Borrower authorized to sign each of the Loan Documents to which such Borrower is a party and a true and complete copy of each Borrower's by-laws; (k) A copy of the resolutions approved by the Board of Directors of each Borrower authorizing the execution, delivery and performance by such Borrower of each of the Loan Documents to which such Borrower is a party, certified as a true copy by the Secretary of the Borrower and such other applicable filing office in any applicable jurisdiction resolutions and authorizations as the Bank may reasonably request; (l) A written opinion of counsel to the Borrowers with respect to such matters as the Bank shall request; (m) An originally executed copy of a Borrowing Base Certificate from each Borrower dated as of a date not more than three (3) days prior to the date of the initial Advance; (n) Evidence reasonably satisfactory to the Bank that the Administrative Agent deems Collateral is properly insured in accordance with the provisions of this Agreement and that the Collateral is not subject to any Lien other than Permitted Liens; (o) Evidence reasonably satisfactory to the Bank that all filings, recordings and other actions that are necessary or desirable in order to establish and perfect the interests Bank's security interest in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all a valid perfected first priority security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts interest shall have been establishedduly effected, including, without limitation, the filing of UCC-1 financing statements, and the Account Control Agreement filing or recordation of such other documents as the Bank shall have been executed deem necessary or desirable, all in form and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior substance satisfactory to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable Bank, and documented fees all fees, taxes and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel other charges relating to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); such filings and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, recordings shall have been paid by the BorrowerBorrowers; (lp) delivery The Bank shall have performed to its satisfaction, an audit of such Collateral (including any promissory noteall Accounts Receivable, executed assignment agreements general ledgers, Inventory and Word or pdf copies corporate records of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effectedBorrowers; (mq) a certificate of a Responsible Officer A fully executed copy of the BorrowerAsset Purchase Agreement, dated as of the Closing Date, certifying in form and substance satisfactory to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted LiensBank; (iir) Evidence satisfactory to the Borrower Bank that the United States Bankruptcy Court for the Southern District of Florida has not assignedissued a final and nonappealable order approving the Asset Purchase Agreement and the transactions contemplated thereby; (s) Payment in full of all obligations outstanding under the Loan and Security Agreement between Sel-Leb and the Bank, pledged or otherwise encumbered any interest dated November 6, 1995, as amended (the "Original Loan Agreement"), and the Line of Credit Note executed and delivered in such Collateral connection therewith, as amended; (or, if any such interest t) Evidence satisfactory to the Bank that its obligation to make Advances (as defined in the Original Loan Agreement) under the Original Loan Agreement has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreementterminated; and (iiiu) upon grant by Such other documents and information as the BorrowerBank shall reasonably request, including without limitation UCC, judgment, tax lien and franchise tax searches, leases for all locations at which the Borrowers operate and landlord waivers for all locations at which Collateral Agent has a first priority perfected security interest is located, in form and substance reasonably satisfactory to the CollateralBank, except Permitted Liens or as permitted and all legal matters and documents with respect to the transactions contemplated by this Agreement; and (n) such other opinionsAgreement shall be satisfactory to counsel for the Bank. In the event each and every condition precedent set forth in this Paragraph 6.1 is not satisfied in full on or before October 31, instruments1997, certificates then the Bank may, in it sole and documents from absolute discretion, terminate this Agreement and if this Agreement is so terminated the Borrower as the Agents or any Lender Bank shall have reasonably requestedno further obligation to make the Revolving Loan or the Term Loan.

Appears in 1 contract

Samples: Loan and Security Agreement (Sel-Leb Marketing Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance advance hereunder shall be is subject to the full and complete satisfaction of each of the following conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentprecedent: (a) Lender shall have received, and have approved, each of the Facility Documents following: (other than i) each of the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly Loan Documents, in properly executed and delivered by the parties thereto, which shall each be in full force and effectform; (bii) true any certificates of incorporation, articles of incorporation, and complete copies bylaws or partner's agreement, articles of organization of Borrower, together with any and all modifications thereof as of the Constituent Documents date hereof, (iii) all Certificates of Authority, Certificates of Good Standing (or any such other evidence that Borrower is in good standing in the BorrowerState of Texas and in all other states in which Borrower is currently doing business), Certificates of Existence, borrowing resolutions (with secretary's certificate), Secretary's Certificates of Incumbency, and all other documents required by Lender to evidence Borrower and its representatives are empowered and duly authorized to enter into the Equityholder and agreements evidenced by the Servicer as in effect on the Closing DateLoan Documents; (civ) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documentsif required by Lender, (ii) as to its resolutions or other action of its designated manager approving this Agreement Borrowing Base and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects compliance Certificate dated as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as date of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (hv) if and to the extent required by Lender, landlord's waivers for all locations leased by Borrower at which Borrower's Inventory is located; (vi) if required by Lender, an opinion of counsel for Borrower, which provides, among other things, that (1) the Loan Documents have been duly authorized and executed, (2) the Loan Documents are enforceable in accordance with their terms, and (3) Borrower has all permits, licenses, and consents required for it to conduct its business; (vii) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees insurance policies required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Loan Agreement (Megaworld Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Borrower shall be have delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]Other than accounts described in Section 6.8(a)(i), Borrower shall have delivered duly executed original signatures to the Control Agreement(s); (ec) [Reserved]; (f) Borrower shall have delivered its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State applicable state of Delaware and incorporation or organization of Borrower, dated as of a date no earlier than thirty (30) days prior to the Effective Date; (d) Borrower shall have delivered duly executed original signatures to the completed Borrowing Resolutions for Borrower; (e) Borrower shall have delivered the Subordination Agreement duly executed by any other applicable filing office holder of Subordinated Debt as required by Bank, in favor of Bank; (f) Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Credit Extension, will be terminated or desirable in order to perfect released; (g) Borrower shall have delivered the interests in the Collateral contemplated Perfection Certificate(s) executed by this AgreementBorrower; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable)Borrower shall have delivered a bailee’s/warehouseman’s waiver executed by each bailee, if any, necessary to release all security interests and other rights of any Person Borrower as required by Bank, in the Collateral previously granted by the Borrower, the Equityholder or any transferorfavor of Bank; (i) Borrower shall have delivered a legal opinions (addressed opinion of Borrower’s counsel as to each authority and enforceability, dated as of the Secured Parties) of counsel to Effective Date together with the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestduly executed original signatures thereto; (j) Borrower shall have delivered evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.7 hereof are in full force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of Bank; (k) evidence that (i) all fees the completion of the Initial Audit with results satisfactory to Bank in its sole and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Dateabsolute discretion; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;and (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement Borrower shall have been effected; (m) a certificate of a Responsible Officer of paid the Borrower, dated fees and Bank Expenses then due as of the Closing Date, certifying to the effect that, specified in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (World Energy Solutions, Inc.)

Conditions Precedent to Initial Advance. The obligation of each the Lender to make its initial Advance hereunder shall be under the Credit Facility is subject to the conditions precedent that the Administrative Agent shall have Lender having received on or before the Closing Date the following, each dated as of a date satisfactory to the Lender and in form and substance reasonably satisfactory to the Administrative AgentLender, provided that such condition precedent, being for the sole benefit of the Lender, may be unilaterally waived by it in whole or in part at any time on or before the date of the initial Advance: (a) each certified copies of the Facility Documents (other than articles and borrowing by-laws of the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties theretoBorrower, which shall each be in full force and effecttogether with a related certificate of non-restriction; (b) true and complete certified copies of the Constituent Documents resolutions of the Borrowerboard of directors of the Borrower approving and authorizing the execution, the Equityholder delivery and the Servicer as in effect on the Closing Dateperformance of this Agreement; (c) a certificate of a Responsible Officer status or like certificate with respect to the Borrower issued by the appropriate Governmental Authority of the Borrower jurisdiction of its incorporation; (d) a certificate of the Secretary or an Assistant Secretary of the Borrower, certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action the names and true signatures of its designated manager approving officers authorized to sign this Agreement and the other Facility Documents Loan Documents; (e) a certificate of a Senior Officer of the Borrower to which it is a party and the transactions contemplated hereby and thereby, (iii) effect that its all representations and warranties of the Borrower set forth in the Facility Documents to which it is a party Article 8 are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]initial Drawdown Date; (f) a certificate of a Responsible Officer of such other certificates and documentation relating to the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions Borrower or other action of its board of directors or members approving this Agreement as separately agreed to by the Borrower and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyLender; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary a certificate of State a Senior Officer of the State of Delaware and any other applicable filing office in any applicable jurisdiction Borrower that the Administrative Agent deems necessary or desirable in order to perfect the interests there has been no material adverse change in the Collateral contemplated by this Agreementfinancial condition or results of operations of the Borrower and its Subsidiaries, taken as a whole, from the financial condition and results of operations of the Borrower and its Subsidiaries presented in the financial statements listed in Schedule 8.1(l); (h) copies favourable opinion of proper financing statement amendments (or counsel for the equivalent thereof Borrower to and in any applicable foreign jurisdiction, as applicable), if any, necessary favour of the Lender in form and substance reasonably satisfactory to release all security interests the Lender and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;its counsel; and (i) legal opinions (addressed to each of the Secured Parties) of counsel evidence satisfactory to the Borrower, Lender that the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or Acquisition will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) completed in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer terms of the Borrower, dated as Acquisition disclosed in writing by the Borrower to the Lender and that the proceeds of the Closing Date, certifying initial Advance will be used by the Borrower only for the completion of the Acquisition or another Permitted Purpose disclosed in writing by the Borrower to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedLender.

Appears in 1 contract

Samples: Non Revolving Credit Agreement (Hub International LTD)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLoan Documents; (b) true Borrower’s Operating Documents and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a good standing certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with certified by the Secretary of State of the State of Delaware as of a date no earlier than sixty (60) days prior to the Effective Date; (c) duly executed original signatures to the completed Borrowing Resolutions for Borrower; (d) duly executed Control Agreements for any domestic accounts maintained outside Bank; (e) the duly executed EX-IM Loan Documents; (f) a public announcement from the United States Food and Drug Administration regarding recalling of AED devices related to Corrective AED Field Action which was announced on November 13, 2009; (g) certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Advance, will be terminated or desirable in order to perfect the interests in the Collateral contemplated by this Agreementreleased; (h) copies the Perfection Certificate of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, together with the Equityholder or any transferorduly executed original signatures thereto; (i) legal opinions (addressed to each landlord’s consents in favor of Bank, together with the Secured Parties) of counsel to the duly executed original signature thereto, for Borrower’s Bothell, the EquityholderWashington and Deerfield, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestWisconsin facilities; (j) evidence reasonably satisfactory to it that bailee agreements from all of locations where Borrower stores Eligible Domestic Inventory or EX-IM Eligible Foreign Inventory, if any, in the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effectform attached hereto as Exhibit F; (k) evidence satisfactory to Bank that (i) all fees the insurance policies required by Section 6.7 hereof are in full force and expenses due and effect, together with appropriate evidence showing lender loss payable to each Lender on and/or additional insured clauses or prior to the Closing Date have been received or will be received contemporaneously with the Closing Dateendorsements in favor of Bank; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;and (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies payment of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) fees and Bank Expenses then due as specified in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Cardiac Science CORP)

Conditions Precedent to Initial Advance. The obligation of each Lender the Lenders to make its available the initial Advance hereunder shall be under a Credit Facility on the Initial Advance Date is subject to the conditions precedent that the Administrative Agent shall have received satisfaction, on or before the Closing Date the followingInitial Advance Date, each in form and substance reasonably satisfactory to the Administrative Agent: (a) of each of the Facility following conditions precedent, which conditions precedent are for the sole and exclusive benefit of the Lenders and may be waived in writing by the Administrative Agent at the direction of the Required Lenders in their sole discretion (it being acknowledged that, for purposes of the delivery requirements set out below in respect of the Loan Documents (other than this Agreement, the Collateral Agent Escrow Agreement, the Arrangement Letter and the Agency Fee Letter which Letter), the Material Agreements and legal opinions, execution and delivery of such documents into the escrow contemplated by the Escrow Agreement and bearing a date of June 11, 2019 will satisfy the delivery requirements of this Section 10.1): 10.1.1 this Agreement and the other Loan Documents shall be delivered directly to the Collateral Agent) duly have been executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the BorrowerObligors, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsLimited Recourse Guarantors, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestthe Lenders parties thereto, other than as set forth in Section 9.2.15 in respect of the NFEC Lease; (j) evidence reasonably satisfactory to it that all 10.1.2 each of the Covered Accounts shall have been establishedDirect Agreements (other than the Landlord Direct Agreements in respect of the NFEC Lease and the Dorchester Lease), and the Account Control Escrow Agreement shall have been executed and delivered by all parties thereto; 10.1.3 the Administrative Agent shall have received and be satisfied with the (i) copies of non-disturbance agreements and postponements from all freehold mortgagees to the leasehold interests held by the tenants/sublandlords under the Leases if required to ensure that the occupation and possession of the premises by the tenant under such Leases will not be disturbed so long as the tenant or any leasehold mortgagee is not in default (beyond any period given to it in the Lease to cure such default), (ii) copies of the Investor Rights Agreement and the Convertible Debentures and (iii) Subordination Agreements in respect of the Convertible Debentures; 10.1.4 the representations and warranties set out in Article 8 shall be true and correct on the Initial Advance Date; 10.1.5 no Default or Event of Default shall have occurred and be continuing nor shall there be any Default or Event of Default after giving effect to the initial Advance on the Initial Advance Date; 10.1.6 the Administrative Agent shall have received an officer’s certificate of each Loan Party dated the Initial Advance Date (or the Closing Date, in the case of CSI) certifying that attached thereto are true and correct copies of the following documents, and that such documents are in full force and effect, unamended: 10.1.6.1 the constating documents of such Loan Party (including, in the case of the Borrower, the Collateral Investor Rights Agreement); 10.1.6.2 a certificate of incumbency; and 10.1.6.3 the resolutions or other documentation evidencing that all necessary action, corporate, partnership or otherwise, has been taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party (including, where applicable, the pledge of its Equity Interests); 10.1.7 the Administrative Agent shall have received a certificate of status, certificate of good standing or similar certificate with respect to the jurisdiction of incorporation or formation of each Loan Party; 10.1.8 the Administrative Agent shall have received an officer’s certificate of the Borrower dated the Initial Advance Date confirming Sections 10.1.4 and 10.1.5; 10.1.9 the Lenders shall have been provided with the most recent available financial information in respect of the Business provided by OLG to the Borrower, including draft financial statements (consisting of a balance sheet, an income statement, and a statement of cash flows) for the most recent Operating Year available, all in form and substance satisfactory to the Lenders; 10.1.10 the Administrative Agent shall have received a Compliance Certificate confirming as at the Closing Date, based on the most recently completed four Fiscal Quarter period for which financial information is available pursuant to Section 10.1.9 on a pro forma basis giving effect to the Purchase Transaction and the Custodian initial Advance, (i) compliance with the financial covenants set out in Section 9.4 and (ii) a Total Leverage Ratio not in excess of 2.75:1.00; 10.1.11 the Administrative Agent shall have received financial projections for the Borrower for each of the five years following the Closing Date taking into account the new capital structure following the Closing Date and any transaction contemplated herein, in form and substance satisfactory to the Administrative Agent. 10.1.12 the Administrative Agent shall have received a Borrowing/Rollover/Conversion Notice and a payment direction in respect thereof (providing for, among other things, the deposit of a portion of the initial Advance hereunder in accordance with the Escrow Agreement); 10.1.13 the Security Documents shall have been executed and delivered by the Loan Parties and (except as set out below with respect to CSI) shall be in full force and effect, and the Administrative Agent shall have received certificates, if any, representing all Equity Interests pledged pursuant to the Security Documents, together with related stock powers duly executed in blank; (k) evidence 10.1.14 PPSA financing statements or other registrations of the Security, or notice thereof, shall have been filed, registered, or recorded in all offices of public record, including but not limited to all applicable land registry offices, necessary or desirable in the opinion of the Administrative Agent to preserve or protect the charges and security interests created thereby; 10.1.15 the Administrative Agent shall have received certificates of insurance evidencing that (i) the Obligors are carrying insurance in accordance with Section 9.2.10 and that the interests of the Administrative Agent as first loss payee and additional insured have been recorded in such insurance policies; 10.1.16 the Administrative Agent shall have received a lender title insurance policy or a binding commitment therefor issued by the Title Insurer in respect of all fees of the Leases in the aggregate policy amount of at least $300,000,000, in form and expenses due and payable substance satisfactory to the Lenders, acting reasonably; 10.1.17 the Administrative Agent shall have received opinions of external counsel to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with Loan Party dated the Closing Date; (ii) the reasonable , in each case, in form and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel substance satisfactory to the Administrative Agent, acting reasonably, including, without limitation, opinions with respect to (a) the existence of the Loan Parties, (b) the due authorization, execution and delivery of all Loan Documents, (c) the enforceability of all Loan Documents, (d) the effectiveness of the Security Documents to create valid security interests in connection with favour of the transactions contemplated hereby Administrative Agent for the ratable benefit of the Secured Parties and the perfection of such security interests, (to e) the extent invoiced prior validity, enforceability and registration of the Closing Date); charges in favour of the Administrative Agent over the Borrower’s leasehold interests, (f) non-contravention of charter documents, including, as applicable, the Investor Rights Agreement, and (iiig) non-contravention of the Material Agreements; 10.1.18 all other reasonable and documented up-front expenses amounts and fees (including legal upfront fees, the agency fee and reasonable fees and disbursements of outside counsel to the Lenders and any fees required under other consultant or other third party professional service firms engaged by the Collateral Agent Fee LetterLenders) that are, in the case of clauses (ii) are due and (iii), invoiced at least one Business Day prior payable to the Closing Date, Administrative Agent or the Joint Lead Arrangers on or before the Initial Advance Date shall have been paid or arrangements shall be in place to pay such amounts and fees concurrently with the initial Advance; 10.1.19 the Obligors shall have received all required governmental, shareholder and third party consents and approvals required to own the Casino Facilities, operate the Business and complete the transactions contemplated hereby, and the Borrower shall have provided evidence thereof to the Administrative Agent and the Lenders; 10.1.20 all searches reasonably requested by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies Lenders’ counsel in respect of the principal credit agreement for each initial Collateral LoanLoan Parties have been completed, and all releases, discharges (or written authorizations to discharge from the applicable Lien holder in form acceptable to the extent received Administrative Agent), postponements (in registrable form where appropriate) or acknowledgements, as required by the BorrowerAdministrative Agent, with respect to all Liens (excluding Permitted Liens) in accordance with the Custodian Agreement shall have been effecteddelivered to the Administrative Agent; 10.1.21 the Administrative Agent and the Lenders have received, at least five (m5) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately Business Days prior to the delivery thereof on Initial Advance Date (or such shorter period as the Closing Date:Lenders may agree), all information, reports and documents as they may reasonably require under applicable “know your customer” and anti-money laundering rules and regulations and shall be satisfied, acting reasonably, with the results of their review thereof; 10.1.22 the Administrative Agent shall have received evidence satisfactory to it that (i) the Borrower is has been capitalized with at least $60,000,000 indirectly contributed to the owner Borrower by the Sponsor, in the form of such Collateral free the issuance of Equity Interests by the Borrower, and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assignedraised Net Proceeds of at least $40,000,000 by way of the issuance of Convertible Debenture to the Investor, pledged in each case, on or otherwise encumbered any interest prior to the Initial Advance Date and on terms acceptable to the Lenders, and (iii) the amount of the initial Advance hereunder to be deposited pursuant to the Escrow Agreement, together with the Sponsor’s and Investor’s contributions of funds pursuant to the Escrow Agreement, is sufficient to fund payment of the purchase price in such Collateral (orfull pursuant to the TAPA; 10.1.23 all Debt of the Obligors, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens Debt, shall have been repaid in full or interests granted shall be repaid contemporaneously with the initial Advance; 10.1.24 the Administrative Agent shall have received a certified copy of each Material Agreement then in effect and each such Material Agreement shall be in form and substance acceptable to the Lenders and their legal counsel; 10.1.25 The Investor Rights Agreement and each Material Agreement shall be in full force and effect, in the form reviewed and approved by the Lenders and their legal counsel, as of the Initial Advance Date (without any amendment, modification or waiver of any of the provisions thereof that would be materially adverse to the Lenders without the consent of the Lenders), and each Loan Party shall be in compliance in all material respects with all of its obligations thereunder; 10.1.26 no Material Adverse Change shall have occurred since the date of the most recent audited combined financial statements in respect of the Business provided to the Lenders; 10.1.27 there shall be no order preventing, and no claim or judicial or administrative proceeding, or investigation before or by any Governmental Authority against (i) any party to the Material Agreements for the purpose of enjoining or preventing the right of the Borrower to operate the Business (as contemplated under the COSA) or to consummate the TAPA, or (ii) any party to the Loan Documents for the purpose of enjoining or preventing the financing transactions contemplated hereby; 10.1.28 the Initial Advance Date shall have occurred on or before June 10, 2019. 10.1.29 the Administrative Agent and the Lenders shall have received evidence satisfactory to them that the Purchase Transaction shall be consummated on the Business Day following the initial Advance in accordance with the TAPA and the Escrow Agreement, without any material amendments, waivers or consents by the Borrower unless approved in writing by the Required Lenders; 10.1.30 all relevant filings shall have been made and regulatory approvals obtained in respect of the Purchase Transaction; and 10.1.31 the Administrative Agent shall have received such additional evidence, documents or undertakings as the Lenders have reasonably requested in connection with the consummation of the transactions contemplated hereby; provided that all documents delivered pursuant to this Section 10.1 shall be in full force and effect, and in form and substance satisfactory to the Required Lenders, acting reasonably. Notwithstanding anything to the contrary in this Agreement; and (iii) upon grant by the Borrower, CSI will not be considered a party to this Agreement, the Collateral Agent has Loan Documents to which it is a first priority perfected security interest in party will not be effective as against CSI, and CSI shall not be considered an Obligor hereunder, unless and until the CollateralPurchase Transaction is completed. Immediately upon such completion, except Permitted Liens or as permitted and without further action by any party, CSI shall become a party to this Agreement; and (n) such other opinions, instrumentsthe Loan Documents to which it is a party shall become effective as against CSI, certificates and documents from the Borrower as the Agents or any Lender it shall have reasonably requestedbe considered an Obligor for all purposes hereof.

Appears in 1 contract

Samples: Credit Agreement (Mohegan Tribal Gaming Authority)

Conditions Precedent to Initial Advance. The obligation At or before the time of each Lender to make its initial the first Advance hereunder shall be subject to under this Agreement, the conditions precedent that Agent, for and on behalf of the Administrative Agent Lenders, shall have received on or before the Closing Date the following, each in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent:Lenders, acting reasonably (unless delivery has been waived in accordance with Section 10.7.2): (a) each all conditions precedent to the loans to be advanced to Omega by the U.S. Banks as referenced in Article [3] of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly Omega Credit Agreement are satisfied and completed in full to the Collateral satisfaction of the Agent) duly , and that duplicate original executed copies of all certificates and delivered other documents to be provided by Omega to the parties thereto, which shall each be U.S. Banks as provided in full force and effectArticle [3] of the Omega Credit Agreement are provided to the Agent; (b) true evidence satisfactory to the Agent that all debts, liabilities and complete copies obligations owing under Kitchen Craft of Canada Ltd.'s existing credit arrangements with CIBC and any other debt not forming part of the Constituent Documents of Permitted Obligations will be paid in full concurrently with the Borrower, the Equityholder and the Servicer as in effect on the Closing Dateinitial Advance; (c) a certificate letter of a Responsible Officer undertaking from Omega that duplicate original copies of all deliveries to be made to the U.S. Banks pursuant to section [5.1] of the Omega Credit Agreement shall be concurrently made and delivered to the Agent during the term of this Agreement, such letter to be in the form attached hereto as Schedule 5.1(c); (d) certified copies of the Constating Documents of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action and all of its designated manager approving this Agreement Subsidiaries (other than the Transitory Subsidiary), and certificates of good standing from the jurisdictions in which each of them carries on business; (e) certified copies of the corporate proceedings taken by the Borrower and all of its Subsidiaries (other Facility than the Transitory Subsidiary) and Omega, authorizing them to execute, deliver and perform their respective obligations under the Credit Documents; (f) an incumbency certificate showing the names and titles and bearing copies of the signatures of the officers of the Borrower authorized to execute the Credit Documents and to which it is a party and the transactions contemplated hereby and therebyrequest Advances, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects certified as of the Closing Date (except to by the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default Secretary or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer Assistant Secretary of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyBorrower; (g) financing statements (or duly executed copies of this Agreement and the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;Security, (h) copies certificates of proper financing statement amendments (insurance with loss payable to the Agent on behalf of the Lenders, or other evidence that the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests covenants and other rights conditions of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorCredit Documents concerning insurance coverage are being complied with; (i) legal opinions phase 1 environmental assessment reports (addressed or other evidence satisfactory to each the Lenders concerning environmental matters) in respect of material real property owned or occupied by the Borrower that are in the possession of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it releases, discharges and postponements (in registerable form where appropriate) covering all Encumbrances affecting the collateral Encumbered by the Security which are not Permitted Encumbrances, and all statements and acknowledgments that all are required in respect of other security interests affecting the Property of the Covered Accounts shall have been established, Borrower and its Subsidiaries or other parties delivering Security to confirm that the Account Control Agreement shall have been executed and delivered collateral Encumbered by those Encumbrances does not include the collateral Encumbered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; Security or is a Permitted Encumbrance; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior title opinions satisfactory to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses Lenders covering all mortgages of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, freehold real property in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the BorrowerCanada; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Credit Agreement (Omega Cabinets LTD)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial the INITIAL Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Lender shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to Lender, the Administrative Agentfollowing: (a) each of the Facility Documents this Agreement (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectincluding all Schedules hereto); (b) true and complete copies a certificate of the Constituent Documents Secretary of Borrower with respect to articles, bylaws, incumbency and resolutions authorizing the Borrower, the Equityholder execution and the Servicer as in effect on the Closing Datedelivery of this Agreement; (c) a certificate of a Responsible Officer of the Borrower certifying an intellectual property security agreement executed by IBI and an intellectual property security agreement executed by FFM (i) as including all Schedules to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partythem); (d) [Reserved]the Subordination Agreement, in form and substance satisfactory to Lender; (e) [Reserved]financing statements (Forms UCC-1); (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyinsurance certificate; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State payment of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementFacility Fee; (h) copies a good standing certificate from Borrower's jurisdiction of proper financing statement amendments incorporation (or together with tax good standing) and certificates of foreign qualification from all jurisdictions in which the equivalent thereof in any applicable nature of Borrower's business requires Borrower to be qualified as a foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorcorporation; (i) legal opinions (addressed to each a written strategic plan including a specification of the Secured Parties) of counsel means for implementing such plan, in form and substance satisfactory to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestLender; (j) evidence reasonably a copy of the Senior Loan Agreement and the other Senior Loan Documents, pursuant to which Senior Lender will make available to Borrower a credit facility in the minimum amount of $2,000,000 for a period until May 1, 2000, with each Senior Loan Document in form and substance satisfactory to it that all Lender (and the closing of the Covered Accounts transactions contemplated thereunder shall have been established, and occurred or shall occur concurrently with the Account Control Agreement shall have been executed and delivered by closing of the Borrower, the Collateral Agent and the Custodian and shall be in full force and effecttransactions under this Agreement); (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the consolidated financial statements for Borrower's 1998 fiscal year; (l) delivery of such Collateral evidence that all required consents (including consents from Borrower's board of directors and shareholders and contractual counterparties), approvals and permits (including qualifications or permits required from governmental authorities in order to render inapplicable any promissory note, executed assignment agreements and Word usury or pdf copies other limitation upon the amounts in the nature of interest to be charged under the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effectedLoan Documents); (m) a certificate of a Responsible Officer An executed copy of the Borrower, dated as Merger Agreement certified by an officer of IBI and FFM to be a true and correct counterpart of the Closing DateMerger Agreement, certifying to the effect thatincluding all amendments, in the case of each item of Collateral pledged to the Collateral Agentmodifications, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free exhibits and clear of any Liens except for those which are being released on the Closing Date or Permitted Liensschedules thereto; (iin) evidence acceptable to Lender that FFM and Fast Forward have completed their merger on terms and conditions acceptable to Lender, in its sole discretion, that FFM is the Borrower has not assignedsurviving entity in connection with such merger, pledged or otherwise encumbered any interest that all consents, approvals and authorizations required in connection with such Collateral (ormerger have been obtained, if any such interest has and that all required filings and registrations have been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreementcompleted; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (no) such other opinionsdocuments, instrumentsand completion of due diligence and such other matters, certificates and documents from the Borrower as the Agents Lender may deem necessary or any Lender shall have reasonably requestedappropriate.

Appears in 1 contract

Samples: Subordination Agreement (Zindart LTD)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Borrower shall be have delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]UK Borrower shall have delivered duly executed original signatures to the Mortgage Debenture; (ec) [Reserved]US Borrower shall have delivered duly executed original signatures to the Control Agreements; (fd) Borrower shall have delivered its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with US Borrower certified by the Secretary of State of the State of Delaware and Washington as of a date no earlier than thirty (30) days prior to the Effective Date; (e) Borrower shall have delivered duly executed original signatures to the completed Borrowing Resolutions for Borrower; (f) US Borrower shall have delivered duly executed original signatures to the IP Agreements; (g) Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall reasonably request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Advance, will be terminated or desirable in order to perfect the interests in the Collateral contemplated by this Agreementreleased; (h) copies of proper financing statement amendments (or US Borrower shall have delivered the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted Perfection Certificate executed by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each UK Borrower shall have delivered a Secretary’s Certificate duly executed by the Secretary of the Secured Parties) of counsel to the UK Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) US Borrower shall have delivered a landlord’s consent executed by AVM, L.P. and Liberty Property Limited Partnership in favor of Bank; (k) Borrower shall have delivered a legal opinion of Borrower’s counsel in the United States and in England dated as of the Effective Date together with the duly executed original signatures thereto; (l) [Reserved]; (m) Borrower shall have delivered evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.7 hereof are in full force and effect; (k) , together with appropriate evidence that (i) all fees and expenses due and showing loss payable to each Lender on and/or additional insured clauses or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses endorsements in favor of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this AgreementBank; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedpaid the fees and Bank Expenses then due as specified in Section 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Airspan Networks Inc)

Conditions Precedent to Initial Advance. The Lender’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Lender shall consent to or shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentLender, such documents, and completion of such other matters, as Lender may reasonably deem necessary or appropriate, including, without limitation: (a) 3.1 copies of original Loan Documents, each duly executed by Borrower and each Subsidiary, as applicable; 3.2 the acknowledgment to the Intercreditor Agreement, duly executed by Borrower; 3.3 a completed Perfection Certificate for Borrower and each of its Subsidiaries; 3.4 the Facility Operating Documents and good standing certificates of Borrower certified by the Secretary of State (other or equivalent agency) of Borrower’s jurisdiction of organization or formation and each jurisdiction in which Borrower is qualified to conduct business (except where the failure to be so qualified would not result in a Material Adverse Change), each as of a date no earlier than the Collateral Agent Fee Letter which shall be delivered directly thirty (30) days prior to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;Effective Date; and (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) 3.5 a certificate of a Responsible Officer Borrower in substantially the form of Exhibit C hereto executed by the Secretary of Borrower certifying with appropriate insertions and attachments, including with respect to (i) as to its Constituent Documents, the Operating Documents of Borrower (ii) as to its resolutions or other action which Certificate of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as Incorporation of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties Borrower shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with certified by the Secretary of State of the State of Delaware Delaware) and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses resolutions adopted by Borrower’s board of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to directors for the Administrative Agent, in connection with purpose of approving the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedLoan Documents.

Appears in 1 contract

Samples: Business Financing Agreement (Vapotherm Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Borrower shall consent to or have received on or before the Closing Date the followingdelivered, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]; (e) [Reserved]; (f) its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State of Delaware and Nevada as of a date no earlier than thirty (30) days prior to the Effective Date; (c) duly executed original signatures to the completed Borrowing Resolutions for Borrower; (d) the Subordination Agreements duly executed by certain Persons in favor of Bank; (e) certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Advance, will be terminated or desirable released; (f) the Perfection Certificate executed by Borrower; (g) a landlord’s consent for Borrower’s location at 0000 Xxxxx Xxxx Xxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 executed by the landlord in order to perfect the interests in the Collateral contemplated by this Agreementfavor of Bank; (h) copies a legal opinion of proper financing statement amendments (or Borrower’s counsel dated as of the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in Effective Date together with the Collateral previously granted by the Borrower, the Equityholder or any transferorduly executed original signatures thereto; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.5 hereof are in full force and effect; (k) , together with appropriate evidence that (i) all fees and expenses due and showing loss payable to each Lender on and/or additional insured clauses or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses endorsements in favor of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this AgreementBank; and (iiij) upon grant by payment of the Borrower, the Collateral Agent has a first priority perfected security interest fees and Bank Expenses then due as specified in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Cimetrix Inc)

Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of each Lender the Issuing Banks to make its issue (or arrange for the issuance of) the initial Advance hereunder shall be Letter of Credit hereunder, are subject to the conditions precedent that prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received on or before the Closing Date each of the following, each in form and substance reasonably satisfactory to the Administrative Agent: (ai) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) This duly executed and delivered by the parties thereto, which shall each be in full force and effectAgreement; (bii) true and complete copies A duly executed Revolving Loan Note to each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing DateRevolving Loan Commitment; (ciii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements for all of the Borrower Parties; (iv) The Reaffirmation Agreement duly executed by the Borrower Parties; (v) To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank; (vi) To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, the duly executed Blocked Account Agreements required by Section 6.14; (vii) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group; (viii) The legal opinion of K&L Gates LLP, local counsel to the Borrower Parties, addressed to the Lender Group; (ix) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of April 30, 2016; (x) The duly executed Request for Advance for the initial Advance of the Loans, with disbursement instructions attached thereto; (xi) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a Responsible Officer copy of the Certificate of Incorporation or Formation of such Borrower certifying (i) as Party certified to its Constituent Documentsbe true, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true complete and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with by the Secretary of State of the State of Delaware such Borrower Party’s incorporation or formation, (B) a true, complete and any other applicable filing office in any applicable jurisdiction that correct copy of the Administrative Agent deems necessary By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdictionguaranty, as applicable), if anyhereunder, necessary to release all security interests and other rights (D) a certificate of any Person good standing, existence, or similar appellation from each jurisdiction in the Collateral previously granted by the Borrowerwhich such Borrower Party is organized and, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrowerextent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Borrower Party is required to be qualified to do business; provided, that if a document referenced in clause (A) or (B) was delivered in connection with the EquityholderExisting Credit Agreement, the Servicer, the Collateral Agent and the Custodian, covering then delivery of such matters document shall not be required so long as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it applicable Borrower Party delivers an officer’s certificate certifying that all of the Covered Accounts shall no changes have been establishedmade to such document, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be such document remains in full force and effect. (xii) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries; (kxiii) Parent’s and its Subsidiaries’ financial projections, including income statement, balance sheet and statement of cash flows, prepared on a monthly basis through fiscal year 2016 and an annual basis through fiscal year 2021; (xiv) Payment of all accrued and unpaid interest, fees, costs and expenses owing to the Administrative Agent (as defined in the Existing Credit Agreement) or the Lenders (as defined in the Existing Credit Agreement) under the Existing Credit Agreement; (xv) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties (other than, with respect to assets that are not included in the Borrowing Base, insurance policies of the Borrower Parties covering such assets in foreign jurisdictions), in each case, meeting the requirements of Section 6.5; (xvi) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties; (xvii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices; (xviii) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens); (xix) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent; (xx) A certificate signed by an Authorized Signatory of the Administrative Borrower certifying that each of the applicable conditions set forth in Sections 4.2 and 4.3 have been satisfied; (xxi) That certain Master Assignment and Assumption Agreement duly executed by each of the parties thereto; and (xxii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested. (b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations or financial condition of the Borrower Parties shall have occurred since January 30, 2016, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating. (c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group. (d) The Lender Group shall have received evidence satisfactory to them that (i) all fees Necessary Authorizations are in full force and expenses due effect and payable are not subject to each Lender on any pending or prior to the Closing Date threatened reversal or cancellation, and all applicable waiting periods have been received expired, and that no other consents or will be received contemporaneously with the Closing Date; approvals are required and (ii) there is no ongoing investigation or inquiry by any Governmental Authority regarding (A) the reasonable Loans or any other transaction contemplated by the Loan Documents or (B) the conduct of the businesses and documented fees the ownership (or lease) of the Properties of the Borrower Parties, except, with respect to this clause (ii)(B), as could not reasonably be expected to have a Materially Adverse Effect, and expenses the Lender Group shall have received a certificate of Cadwaladeran Authorized Signatory of the Administrative Borrower so stating. (e) The Administrative Agent and the Lenders shall have received all documentation and information required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws. (f) The Administrative Agent shall have completed such other business, Xxxxxxxxxx & Xxxx LLPfinancial, counsel collateral, regulatory and legal due diligence with respect to the Borrower Parties and the results thereof shall be acceptable to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedits sole discretion.

Appears in 1 contract

Samples: Credit Agreement (Oxford Industries Inc)

Conditions Precedent to Initial Advance. The effectiveness of this Agreement and the obligation of each Lender the Lenders to undertake the Revolving Loan Commitment and the Term Loan B Commitment and to make its the initial Advance hereunder shall be are subject to the conditions precedent that prior or contemporaneous fulfillment of each of the following conditions: (a) The Administrative Agent and the Lenders shall have received each of the following: (i) this Agreement duly executed by the Borrower and a Lender Addendum executed and delivered by each Lender and accepted by the Borrower; (ii) duly executed Parent Guaranty; (iii) duly executed Subsidiary Guaranty for each Domestic Subsidiary of the Borrower; (iv) duly executed Parent Security Agreement; (v) duly executed Parent Pledge Agreement, together with stock certificates and undated stock powers; (vi) duly executed Borrower Security Agreement; (vii) duly executed Borrower Pledge Agreement, together with stock certificates and undated stock powers; (viii) duly executed Trademark Security Agreement, together with any documentation relating thereto; (ix) duly executed Subsidiary Security Agreement from each Domestic Subsidiary of the Borrower; (x) duly executed Consents to Assignments in substantially the form attached hereto as Exhibit R assigning to the Administrative Agent shall have received for itself and on behalf of the Lenders the CBT Contracts and the Xxxxx Contract; (xi) the loan certificate of the Borrower dated as of the Agreement Date, in substantially the form attached hereto as Exhibit S, 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 or before Articles of Formation and Operating Agreement of the Closing Borrower as in effect on the Agreement Date, (B) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the state of formation of the Borrower and for each state in which the Borrower is required to qualify to do business, (C) a true, complete and correct copy of the corporate resolutions of the Borrower authorizing the Borrower to execute, deliver and perform this Agreement and the other Loan Documents to which the Borrower is a party, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Ownership Interests of the Borrower; (xii) the loan certificate of the Parent dated as of the Agreement Date, in substantially the form attached hereto as Exhibit T, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with the following items: (A) a true, complete and correct copy of the Certificate or Articles of Formation and Operating Agreement of the Parent as in effect on the Agreement Date, (B) certificates of good standing for the Parent issued by the Secretary of State or similar state official for the state of formation of the Parent and for each state in which the Parent is required to qualify to do business, (C) a true, complete and correct copy of the corporate resolutions of the Parent authorizing the Parent to execute, deliver and perform this Agreement and the other Loan Documents to which Parent is a party, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Ownership Interests of the Parent; (xiii) the loan certificate of each Domestic Subsidiary of the Borrower, dated as of the Agreement Date, in substantially the form attached hereto as Exhibit U, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with the following items: (A) a true, complete and correct copy of the articles of incorporation or certificate of formation and by-laws or operating agreement or other formation documents of such Subsidiary as in effect on the Agreement Date, (B) certificates of good standing for such Subsidiary issued by the Secretary of State or similar state official for the state of incorporation or formation of such Subsidiary and for each state in which such Subsidiary is required to qualify to do business, (C) a true, complete and correct copy of the corporate or other organizational resolutions of such Subsidiary authorizing such Subsidiary to execute, deliver and perform the Loan Documents to which such Subsidiary is a party, and (D) a true, complete and correct copy of any shareholders' or members' agreements or voting trust agreements in effect with respect to the Ownership Interests of such Subsidiary; (xiv) legal opinion of Xxxxxx & Xxxxxxx, counsel to the Parent, the Borrower and CBD Finance, addressed to each Lender and the Administrative Agent and dated as of the Agreement Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:Agent and the Lenders; (axv) each copies of insurance binders or certificates covering the assets of the Facility Documents Borrower and its Subsidiaries and otherwise meeting the requirements of this Agreement; (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agentxvi) duly executed Certificate of Financial Condition for the Parent, the Borrower and delivered its Subsidiaries on a consolidated basis, given by the parties theretochief financial officer of the Borrower, which and such other information pertaining to the capital and corporate structure of the Parent, the Borrower or any of its Subsidiaries as the Administrative Agent or the Lenders shall reasonably request; (xvii) recent lien and judgment search results in each be relevant jurisdiction reasonably satisfactory to the Administrative Agent and the Lenders with respect to the Parent, the Borrower and its Subsidiaries; (xviii) delivery to the Administrative Agent of all possessory collateral, including, without limitation, any pledged notes or pledged stock; and (xix) duly executed Performance Certificate for the Parent, the Borrower and its Subsidiaries. (b) The Administrative Agent and the Lenders shall have received evidence reasonably satisfactory to them that all Necessary Authorizations, necessary or, in the discretion of the Administrative Agent, advisable in connection with the Transactions, the financing contemplated hereby and the continuing operations of the Borrower and its subsidiaries have been obtained or made, are in full force and effect; (b) true and complete copies of effect and, all applicable waiting periods shall have expired without any action being taken or, to the Constituent Documents knowledge of the Borrower, the Equityholder and the Servicer as in effect threatened by any competent authority which would reasonably be expected to restrain, prevent, or otherwise impose materially adverse conditions on the Closing Date;Transactions or the financing thereof. (c) a certificate of a Responsible Officer The Borrower shall certify to the Administrative Agent and the Lenders that each of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party Article 4 hereof are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier datedate hereof, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default then exists or is continuing and that no material adverse change has occurred in the financial condition, business operations, prospects or properties of the Parent, the Borrower and is continuingits Subsidiaries, on a consolidated basis, since the most recent fiscal year end and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;fiscal quarter end. (d) [Reserved];The Administrative Agent and the Lenders shall have received evidence reasonably satisfactory to them that no event shall have occurred and no condition shall exist which has had or could reasonably be expected to have a Materially Adverse Effect since December 31, 2002. (e) [Reserved];There shall not exist as of the Agreement Date, any action, suit, proceeding or investigation pending against, or, to the knowledge of the Borrower, threatened against or in any manner relating adversely to, the Parent, the Borrower, any of its Subsidiaries, any of their respective properties or the transactions contemplated hereby, in each case, which reasonably could be expected to have a Materially Adverse Effect. (f) a certificate of a Responsible Officer of The Lenders, the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement Administrative Agent and the other Facility Documents Arrangers shall have received all fees required to which it is a party and be paid on or before the transactions contemplated hereby and thereby, (iii) that its representations and warranties Agreement Date or as set forth in separate letter agreements executed by the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date)Borrower, and (iv) as the Administrative Agent and the Lenders shall have received reimbursement of all reasonable out-of-pocket expenses payable by the Borrower pursuant to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;this Agreement. (g) financing statements (or The Borrower and CBD Finance shall have received gross proceeds of at least $150,000,000 in cash from the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State issuance of the State Senior Subordinated Notes, on terms and conditions reasonably satisfactory to the Arrangers. After the consummation of Delaware the Transactions, the capital structure of each of the Parent, the Borrower and any other applicable filing office its Subsidiaries shall be satisfactory in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;all respects. (h) copies The sources and uses of proper financing statement amendments (funds for the Transactions shall be substantially as set forth on Schedule 8 hereto, or as otherwise reasonably satisfactory to the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;Lenders. (i) legal opinions The Lenders shall have received copies of (addressed to each i) satisfactory audited consolidated financial statements (1) of CBD for the fiscal year ended December 31, 2001, (2) of CBD for the period from January 1, 2002 through March 7, 2002 and (3) of the Secured PartiesBorrower for the period from March 8, 2002 through December 31, 2002 and (ii) satisfactory unaudited interim consolidated financial statements of counsel to the BorrowerBorrower for the fiscal quarter ended on March 31, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;2003. (j) The Lenders shall have received a reasonably satisfactory pro forma consolidated balance sheet of the Borrower as of the date of the most recent consolidated balance sheet delivered pursuant to paragraph (i) above, adjusted to give effect to the consummation of the Transactions and the financings contemplated hereby as if such transactions had occurred on such date. (k) The Lenders shall have received financial projections (with a written outline of the applicable assumptions made in respect thereof) for fiscal years 2003 through 2009. (l) The Borrower shall have received credit ratings of (i) not less than B3 from Xxxxx'x and B- from S&P in respect of the Senior Subordinated Notes, and (ii) a rating of not less than B1 from Xxxxx'x and B+ from S&P in respect of the Loans, all of which ratings shall be with a stable outlook and remain in effect on the Agreement Date. (m) The Administrative Agent shall have received evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Existing Credit Agreement shall have been executed and delivered by the Borrowerterminated, the Collateral Agent and the Custodian and all amounts thereunder shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable paid in full, and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel all liens in respect thereof shall have been terminated in a manner reasonably satisfactory to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Credit Agreement (CBD Media LLC)

Conditions Precedent to Initial Advance. The obligation of each Lender Bank’s agreement to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to Bank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation, subject to the Administrative Agentcondition precedent that Bank shall have received, in form and substance satisfactory to Bank, the following: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (b) duly executed original signatures to the Guaranty by Guarantors; (c) duly executed original signatures to the completed Corporate Borrowing Certificates for each Borrower, plus all exhibits thereto; (d) [Reserved]duly executed original signatures to the completed Guaranty Certificates for each Guarantor, plus all exhibits thereto; (e) [Reserved]; (f) a good standing certificate/certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with qualification from the Secretary of State of the State of Delaware and any other applicable filing office Virginia State Corporation Commission for GTTI and good standing certificate from the Virginia State Corporation Commission for GTTA, dated no later than 30 days prior to the Effective Date. (f) a Subordination Agreement, in any applicable jurisdiction that substantially the Administrative Agent deems necessary or desirable in order same form attached hereto as Exhibit E, duly executed by the creditors listed on Schedule A to perfect such Subordination Agreement; (g) the interests in the Collateral contemplated Perfection Certificates executed by this Agreementeach Borrower; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.4 hereof are in full force and effect; (k) , together with appropriate evidence that (i) all fees and expenses due and showing loss payable to each Lender on and/or additional insured clauses or prior to the Closing Date have been received or will be received contemporaneously with the Closing Dateendorsements in favor of Bank; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner such other documents, and completion of such Collateral free and clear of any Liens except for those which are being released on the Closing Date other matters, as Bank may reasonably deem necessary or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedappropriate.

Appears in 1 contract

Samples: Loan and Security Agreement (Global Telecom & Technology, Inc.)

Conditions Precedent to Initial Advance. The obligation of each Lender shall not be obligated to make its any Advance until the following conditions have been satisfied or waived by Lender on and as of the Effective Date and the initial Advance hereunder shall be subject to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative AgentDate: (a) Lender has received the following documents, each dated the Closing Date or as of the Facility Documents Closing Date unless otherwise specified: (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agenti) each Loan Document duly executed and delivered by the parties thereto, thereto (other than the Electronic Tracking Agreement which shall each be in full force duly executed and effect; delivered by the parties thereto within the thirty (b30) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on days following the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents), (ii) as an official good standing certificate dated within fourteen (14) days of the Closing Date with respect to its resolutions or other action of its designated manager approving this Agreement Borrower, PMC, Servicer and the other Facility Documents to which it is a party and the transactions contemplated hereby and therebyLimited Guarantor, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as certificates of the Closing Date (except to secretary or an assistant secretary of Borrower, PMC, Servicer and Limited Guarantor together with copies of the extent such representations Governing Documents and warranties expressly relate to any earlier dateapplicable resolutions and the incumbencies and signatures of officers of Borrower, in which case such representations PMC, Servicer and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to Limited Guarantor executing the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; , evidencing the respective authority of Borrower, PMC, Servicer and Limited Guarantor with respect to the execution, delivery and performance thereof, (d) [Reserved]; (e) [Reserved]; (fiv) a certificate of a Responsible Officer of the Servicer certifying, respectivelyClosing Certificate, (iv) an executed Power of Attorney, (vi) such opinions from counsel (dated on or prior to the Effective Date) to Borrower, PMC, Servicer and Limited Guarantor as Lender may require, including with respect to its Constituent corporate matters, enforceability, non-contravention, no consents or approvals required other than those that have been obtained, first priority perfected security interests in the Pledged Mortgage Loans, the related Servicing Rights and any other Collateral pledged pursuant to the Loan Documents, (ii) as Investment Company Act matters, local counsel opinions with respect to its resolutions Borrower, PMC or other action of its board of directors or members approving this Agreement Limited Guarantor that is domiciled offshore, true sale, substantive non-consolidation, and the other Facility Documents to which it is a party applicability of Bankruptcy Code “securities contract” and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date)“master netting agreement” safe harbors, and (ivvii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferormay require; (i) legal opinions UCC financing statements have been filed against Borrower and PMC in all filing offices required by Lender, (addressed ii) Lender has received such searches of UCC filings, tax liens, judgments, pending litigation, bankruptcy and other matters relating to each of the Secured Parties) of counsel to the Borrower, the EquityholderPMC, the Servicer, Limited Guarantor and the Collateral Agent as Lender may require, and (iii) the Custodian, covering results of such matters as the Administrative Agent and its counsel shall reasonably requestsearches are satisfactory to Lender; (jc) evidence reasonably satisfactory to it that all Lender has received payment from Borrower of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and then payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that areLetter and the other Loan Documents, in as contemplated by Section 13.02, including without limitation the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this AgreementFacility Fee; and (iiid) upon grant by the Borrower, the Collateral Agent Lender has a first priority perfected security interest in the Collateral, except Permitted Liens or completed to its satisfaction such due diligence and modeling as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedit may require.

Appears in 1 contract

Samples: Master Loan and Security Agreement (PennyMac Mortgage Investment Trust)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial the Initial Advance hereunder shall be is subject to the following conditions precedent that precedent: (a) Receipt by Lender of the Administrative Agent shall have received on fully executed Advance Request; (b) If the Initial Advance is a Variable Advance, receipt by Lender at least five (5) days prior to the Initial Closing Date, of the confirmation of an Interest Rate Cap commitment, in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial Closing Date; (c) If the Initial Advance is a Variable Advance, receipt by Lender of Interest Rate Cap Documents in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial Closing Date; (d) Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed and delivered original copies of the Variable Facility Note or before Fixed Facility Note, as applicable, the Closing Date Guaranty, the followingInitial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, each and other appropriate instruments, in form and substance reasonably satisfactory to Lender and in form proper for recordation, as may be necessary in the Administrative Agent: (a) each opinion of Lender to perfect the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered Liens created by the parties theretoapplicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as payment of all taxes, fees and other charges payable in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documentsconnection with such execution, (ii) as to its resolutions or other action of its designated manager approving this Agreement delivery, recording and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]filing; (e) [Reserved];If the Initial Advance is a Variable Advance, receipt by Lender of the first installment of Variable Facility Fee and the entire Discount payable by Borrower pursuant to Section 1.04(b); and (f) a certificate of a Responsible Officer Receipt by Lender of the Servicer certifying, respectively, (iInitial Origination Fee pursuant to Section 10.03(a) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Initial Due Diligence Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 10.04(a).

Appears in 1 contract

Samples: Master Credit Facility Agreement (Camden Property Trust)

Conditions Precedent to Initial Advance. The Bank's obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and evidence of completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Borrower shall be have delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party, including this Agreement, the IP Security Agreement, the Cross-Guaranty, and one or more Control Agreements, with respect to each Borrower, relative to all Collateral Accounts maintained by such Borrower with any affiliate of Bank; (db) [Reserved]; (e) [Reserved]; (f) Borrower shall have delivered its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that as of a date prior to the Administrative Agent deems necessary or desirable in order Effective Date satisfactory to perfect the interests in the Collateral contemplated by this AgreementBank; (hc) copies of proper financing statement amendments (or Borrower shall have delivered duly executed original signatures to the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the completed Borrowing Resolutions for Borrower, the Equityholder or any transferor; (id) legal opinions Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (addressed to each of including any UCC termination statements) that the Secured Parties) of counsel to Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the Borrowerinitial Advance, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestwill be terminated or released; (je) Borrower shall have delivered the Perfection Certificate executed by Borrower; (f) Borrower shall have delivered evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.7 hereof are in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Bank; (kg) evidence that (i) all fees and expenses due and payable to each Lender on or prior Pursuant to the Closing Date second sentence of Section 5.2A below, Borrower shall have been received or will be received contemporaneously with delivered to Bank evidence (satisfactory to Bank in its good faith business judgment) of the Closing Date; (ii) the reasonable and documented fees and expenses satisfaction of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel all such obligations relative to the Administrative Agent, in connection with Delaware Biolife Judgment and the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this AgreementCalifornia Biolife Judgment; and (iiih) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedpaid the fees and Bank Expenses then due as specified in Section 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Endocare Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on received, in form and substance satisfactory to Bank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or before appropriate, including, without limitation: (a) duly executed original signatures to the Closing Date Loan Documents; (b) [reserved]; (c) [reserved]; (d) the followingOperating Documents and long-form good standing certificates of Borrower certified by the Secretary of State of Borrower’s jurisdiction of organization or formation and each jurisdiction in which Borrower is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Effective Date; (e) duly executed original signatures to the completed Borrowing Resolutions for Borrower; (f) duly executed original signature to a payoff letter, in form and substance reasonably satisfactory to Bank, from Royal Bank of Canada evidencing that the Administrative Agent:Credit Agreement dated as of September 30, 2013, among Borrower, various lenders, and Royal Bank of Canada, as agent for such lenders, shall have been terminated and all amounts thereunder shall have been paid in full, together with authorization to file the applicable UCC-3 termination statements to be recorded with the Delaware Secretary of State; (ag) each [reserved]; (h) [reserved]; (i) certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released; (j) the Perfection Certificate(s) of Borrower, together with the duly executed original signature thereto; (k) [reserved]; (l) a legal opinion of Borrower’s counsel dated as of the Facility Documents (other than Effective Date together with the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed original signature thereto; (m) evidence satisfactory to Bank that the insurance policies and delivered endorsements required by the parties thereto, which shall each be Section 6.5 hereof are in full force and effect; (b) true and complete copies , together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) Bank; provided that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties endorsements shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing date that is ten (10) Business Days after the Effective Date have been received (or will be received contemporaneously with such later date as the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, Bank may agree in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Dateits sole discretion); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and. (n) such other opinions, instruments, certificates [reserved]; (o) payment of the fees and documents from the Borrower Bank Expenses then due as the Agents or any Lender shall have reasonably requestedspecified in Section 2.5 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (A10 Networks, Inc.)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial the Initial Advance hereunder shall be is subject to the following conditions precedent that precedent: (a) Receipt by Lender of the Administrative Agent shall have received on fully executed Advance Request; (b) If the Initial Advance is a Variable Advance, receipt by Lender at least five (5) days prior to the Initial Closing Date, of the confirmation of an Interest Rate Cap commitment, in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial Closing Date; (c) If the Initial Advance is a Variable Advance, receipt by Lender of Interest Rate Cap Documents in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial Closing Date; (d) Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed and delivered original copies of the Variable Facility Note or before Fixed Facility Note, as applicable, the Closing Date Guaranty, the followingInitial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, each and other appropriate instruments, in form and substance reasonably satisfactory to Lender and in form proper for recordation, as may be necessary in the Administrative Agent: (a) each opinion of Lender to perfect the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered Liens created by the parties theretoapplicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as payment of all taxes, fees and other charges payable in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documentsconnection with such execution, (ii) as to its resolutions or other action of its designated manager approving this Agreement delivery, recording and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]filing; (e) [Reserved];If the Initial Advance is a Variable Advance, receipt by Lender of the first installment of Variable Facility Fee and the entire Discount payable by Borrower pursuant to ; and (f) a certificate of a Responsible Officer Receipt by Lender of the Servicer certifying, respectively, (i) as Initial Origination Fee pursuant to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Initial Due Diligence Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Master Credit Facility Agreement (Camden Property Trust)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Borrower shall consent to or shall have received on or before the Closing Date the followingdelivered, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed facsimile signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Loan Documents to which it is a party party, and the transactions contemplated hereby and thereby, within thirty (iii30) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as days of the Closing Date (except Effective Date, duly executed original signatures to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]; (e) [Reserved]; (f) its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that as of a date no earlier than thirty (30) days prior to the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementEffective Date; (hc) copies of proper financing statement amendments (or duly executed original signatures to the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the completed Borrowing Resolutions for Borrower, the Equityholder or any transferor; (id) legal opinions certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (addressed to each of including any UCC termination statements) that the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering Liens indicated in any such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall financing statements either constitute Permitted Liens or have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agentor, in connection with the transactions contemplated hereby initial Advance, will be terminated or released; (to e) the extent invoiced prior the Closing Date); and (iiiPerfection Certificate(s) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid executed by the Borrower; (lf) delivery of such Collateral within thirty (including any promissory note, executed assignment agreements and Word or pdf copies 30) days of the principal credit agreement for each initial Collateral LoanEffective Date, to the extent received a landlord’s consent executed by the landlord of Borrower) ’s premises identified in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect thatSection 10 hereof, in the case favor of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this AgreementBank; and (iiig) upon grant by payment of the Borrower, the Collateral Agent has a first priority perfected security interest fees and Bank Expenses then due as specified in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Active Power Inc)

Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of each Lender the Issuing Banks to make its issue (or arrange for the issuance of) the initial Advance hereunder shall be Letter of Credit hereunder, are subject to the conditions precedent that prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received on or before the Closing Date each of the following, each in form and substance reasonably satisfactory to the Administrative Agent: (ai) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) This duly executed and delivered by the parties thereto, which shall each be in full force and effectAgreement; (bii) true and complete copies A duly executed Revolving Loan Note to each Lender requesting a promissory note in the amount of such Xxxxxx’s Revolving Commitment Ratio of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing DateRevolving Loan Commitment; (ciii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements for all of the Borrower Parties; (iv) The Reaffirmation Agreement duly executed by the Borrower Parties; (v) To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank; (vi) To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, the duly executed Blocked Account Agreements required by Section 6.14; (vii) The legal opinion of Xxxx & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group; (viii) The legal opinion of K&L Gates LLP, local counsel to the Borrower Parties, addressed to the Lender Group; (ix) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of April 30, 2016; (x) The duly executed Request for Advance for the initial Advance of the Loans, with disbursement instructions attached thereto; (xi) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a Responsible Officer copy of the Certificate of Incorporation or Formation of such Borrower certifying (i) as Party certified to its Constituent Documentsbe true, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true complete and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with by the Secretary of State of the State of Delaware such Borrower Party’s incorporation or formation, (B) a true, complete and any other applicable filing office in any applicable jurisdiction that correct copy of the Administrative Agent deems necessary bylaws or desirable in order to perfect operating agreement of such Borrower Party, (C) a true, complete and correct copy of the interests in resolutions of such Borrower Party authorizing the Collateral contemplated execution, delivery and performance by this Agreement; (h) copies such Borrower Party of proper financing statement amendments (the Loan Documents and authorizing the borrowings or the equivalent thereof in any applicable foreign jurisdictionguaranty, as applicable), if anyhereunder, necessary to release all security interests and other rights (D) a certificate of any Person good standing, existence, or similar appellation from each jurisdiction in the Collateral previously granted by the Borrowerwhich such Borrower Party is organized and, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrowerextent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Borrower Party is required to be qualified to do business; provided, that if a document referenced in clause (A) or (B) was delivered in connection with the EquityholderExisting Credit Agreement, the Servicer, the Collateral Agent and the Custodian, covering then delivery of such matters document shall not be required so long as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it applicable Borrower Party delivers an officer’s certificate certifying that all of the Covered Accounts shall no changes have been establishedmade to such document, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be such document remains in full force and effect. (xii) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries; (kxiii) Parent’s and its Subsidiaries’ financial projections, including income statement, balance sheet and statement of cash flows, prepared on a monthly basis through fiscal year 2016 and an annual basis through fiscal year 2021; (xiv) Payment of all accrued and unpaid interest, fees, costs and expenses owing to the Administrative Agent (as defined in the Existing Credit Agreement) or the Lenders (as defined in the Existing Credit Agreement) under the Existing Credit Agreement; (xv) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties (other than, with respect to assets that are not included in the Borrowing Base, insurance policies of the Borrower Parties covering such assets in foreign jurisdictions), in each case, meeting the requirements of Section 6.5; (xvi) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties; (xvii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices; (xviii) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens); (xix) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent; (xx) A certificate signed by an Authorized Signatory of the Administrative Borrower certifying that each of the applicable conditions set forth in Sections 4.2 and 4.3 have been satisfied; (xxi) That certain Master Assignment and Assumption Agreement duly executed by each of the parties thereto; and (xxii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested. (b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations or financial condition of the Borrower Parties shall have occurred since January 30, 2016, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating. (c) The Lender Group shall have received the audited consolidated financial statements of Parent and its Subsidiaries which present fairly in accordance with GAAP the financial position of Parent and its Subsidiaries as at January 30, 2016, each in form and substance reasonably acceptable to the members of the Lender Group. (d) The Lender Group shall have received evidence satisfactory to them that (i) all fees Necessary Authorizations are in full force and expenses due effect and payable are not subject to each Lender on any pending or prior to the Closing Date threatened reversal or cancellation, and all applicable waiting periods have been received expired, and that no other consents or will be received contemporaneously with the Closing Date; approvals are required and (ii) there is no ongoing investigation or inquiry by any Governmental Authority regarding (A) the reasonable Loans or any other transaction contemplated by the Loan Documents or (B) the conduct of the businesses and documented fees the ownership (or lease) of the Properties of the Borrower Parties, except, with respect to this clause (ii)(B), as could not reasonably be expected to have a Materially Adverse Effect, and expenses the Lender Group shall have received a certificate of Cadwaladeran Authorized Signatory of the Administrative Borrower so stating. (e) The Administrative Agent and the Lenders shall have received all documentation and information required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws. (f) The Administrative Agent shall have completed such other business, Xxxxxxxxxx & Xxxx LLPfinancial, counsel collateral, regulatory and legal due diligence with respect to the Borrower Parties and the results thereof shall be acceptable to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedits sole discretion.

Appears in 1 contract

Samples: Second Amendment to Fourth Amended and Restated Credit Agreement (Oxford Industries Inc)

Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment and to make the initial Advance hereunder, and the obligation of each Lender the Issuing Banks to make its issue (or arrange with a Foreign Issuer the issuance of) the initial Advance hereunder shall be Letter of Credit hereunder, are subject to the conditions precedent that prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received on or before the Closing Date each of the following, each in form and substance reasonably satisfactory to the Administrative Agent: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement Agents and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as members of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing DateGroup: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted LiensThis duly executed Agreement; (ii) A duly executed Revolving Loan Note to the Borrower has not assigned, pledged or otherwise encumbered any interest order of each Lender requesting a promissory note in the amount of such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; andLender's Revolving Commitment Ratio of the Revolving Loan Commitment; (iii) upon grant The Pledge Agreement duly executed by each Borrower Party pledging one hundred percent (100%) of the Equity Interests owned by such Borrower Party in any Domestic Subsidiary and a minimum of sixty five percent (65%) of the Equity Interests owned by such Borrower Party in any Foreign Subsidiary, together with stock certificates representing all of the certificated Equity Interests pledged as security thereunder and stock powers with respect thereto duly endorsed in blank and Uniform Commercial Code financing statements, as applicable, related to all of the Equity Interests pledged as security thereunder; (iv) The Security Agreement duly executed by each Borrower Party, together with Uniform Commercial Code financing statements related thereto; (v) The Intellectual Property Security Agreement duly executed by each Borrower Party; (vi) The Assignment of Rights under Acquisition Agreement duly executed by the BorrowerParent, the Collateral Agent has Target and acknowledged by the Sellers; (vii) Each factor of Accounts under the factoring arrangements described in Schedule 8.7 shall have executed a first priority perfected security Factoring Intercreditor Agreement, (viii) The Fee Letter duly executed by the Borrowers; (ix) The Mortgages duly executed by the applicable Borrower Parties, encumbering each Borrower Party's fee interest in the Collateralreal property listed on Schedule 5.1(w)-2 (other than the Administrative Borrower's real property located in Greenville, except Permitted Liens Georgia, at 000 Xxxxxxxx Xxxx in Vidalia, Georgia, at lots 34 and 35 in Gaffney, South Carolina and at 00xx Xxxxxx in Gaffney, South Carolina), together with delivery to the Administrative Agent of: (w) title insurance commitments (the "Title Insurance Commitments"), each issued by Lawyers Title Insurance Corporation or another title company acceptable to each of the Agents in such form and amount as permitted by this Agreement; and (n) is acceptable to each of the Agents insuring that each Mortgage is a valid first priority Lien on the applicable Borrower Party's interest in the real property subject only to such other opinions, instruments, certificates exceptions to title as shall be acceptable to each of the Agents in their discretion and documents from the Borrower containing such endorsements and affirmative insurance as the Agents may require and as are available in the jurisdiction in which the relevant property is located, and true copies of each document, instrument or certificate required by the terms of each such policy and/or Mortgage to be filed, recorded, executed or delivered in connection therewith; (x) duly authorized Uniform Commercial Code financing statements under the applicable Uniform Commercial Code, or other filings under applicable law, to be filed in connection with each Mortgage in form and substance satisfactory to each of the Agents to perfect the Lien created by each Mortgage; (y) a current survey of the real property encumbered by each Mortgage, certified to the title company, the Lender Group and each of their successors and assigns, in form and content satisfactory to each of the Agents and prepared by a professional and properly licensed land surveyor satisfactory to each of the Agents and (z) local counsel opinions with respect to each Mortgage in form and substance satisfactory to each of the Agents. (x) An environmental review and audit report (including phase I and, as determined necessary by the Agents, phase II environmental reports) with respect to each parcel of Eligible Real Estate, together with a reliance letter in favor of the Lender Group, in each case, satisfactory in all respects to each of the Agents from EMG or another independent firm acceptable to the Administrative Agent (including without limitation any Lender shall have reasonably requestedPhase I and, as determined necessary by the Agents, Phase II environmental reports prepared by EMG), together with copies of all existing environmental reviews and audits and other information pertaining to actual or potential environmental claims as the Agents may require. (xi) Appraisals in form and substance satisfactory to each of the Agents reflecting values of the Borrower Parties' interest in real property and Inventory at levels acceptable to each of the Agents from appraisers acceptable to each of the Agents (including without limitation, appraisals of inventory from Hilco Appraisal Services, LLC, appraisals of real property from Land America, and valuations by the Administrative Agent's field examiners (including, without limitation, valuations from Freed Xxxxxx) reflecting values of the Borrower Parties' Accounts, Inventory and other personal property at levels acceptable to each of the Agents; (xii) Duly executed landlord waiver agreements and bailee waiver agreements, as applicable, with respect to each Borrower Party's leased premises or goods in the possession of bailees, in each case, in form and substance satisfactory to each of the Agents; (xiii) A duly executed Licensor Consent Agreement with respect to each License Agreement;

Appears in 1 contract

Samples: Credit Agreement (Oxford Industries Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Borrower shall consent to or have received on or before the Closing Date the followingdelivered, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]; (e) [Reserved]; (f) its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State of Delaware Delaware, as of a date no earlier than thirty (30) days prior to the Effective Date; (c) duly executed original signatures to the completed Borrowing Resolutions for Borrower; (d) payoff letters in form and substance satisfactory to Bank evidencing that at least $15,000,000 of the outstanding principal under the Existing Notes will be paid in full in connection with the initial Advance, and evidence satisfactory to Bank that no more than $5,000,000 of the outstanding principal under the Existing Notes will be outstanding after the Effective Date; (e) certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Advance, will be terminated or desirable in order to perfect released; (f) the interests in Perfection Certificate executed by Borrower; (g) a legal opinion of Borrower’s counsel dated as of the Collateral contemplated by this AgreementEffective Date together with the duly executed original signatures thereto; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdictionduly executed original signatures to each Guaranty, as applicable), if any, necessary to release all security interests and other rights of any Person in together with the Collateral previously granted by the Borrower, the Equityholder or any transferorcompleted Borrowing Resolutions for each Guarantor; (i) legal opinions (addressed the duly executed original signatures to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestGuarantor Security Agreement; (j) evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.5 hereof are in full force and effect;, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of Bank; and (k) evidence that (i) all payment of the fees and expenses Bank Expenses then due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, as specified in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Websidestory Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Borrower shall be have delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]Borrower shall have delivered a duly executed Intellectual Property Security Agreement; (ec) [Reserved]; (f) Borrower shall have delivered its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State States of California and Delaware and as of a date no earlier than thirty (30) days prior to the Effective Date; (d) Borrower shall have delivered duly executed original signatures to the completed Borrowing Resolutions for Borrower; (e) Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released; (f) Borrower shall have delivered the Perfection Certificate executed by Borrower; (g) Borrower shall have delivered evidence satisfactory to Bank that the Administrative Agent deems necessary insurance policies required by Section 6.5 hereof are in full force and effect, together with appropriate evidence showing lender’s loss payable and/or additional insured clauses or desirable endorsements in order to perfect the interests in the Collateral contemplated by this Agreementfavor of Bank; (h) copies Bank shall have conducted an audit of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;to Bank’s satisfaction; and (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts Borrower shall have been established, and paid the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses Bank Expenses then due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, as specified in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Interlink Electronics Inc)

Conditions Precedent to Initial Advance. The Bank shall have no obligation of each Lender to make its the initial Advance hereunder shall be subject to unless the conditions precedent that the Administrative Agent Bank shall have received on or before the Closing Date date of such Advance the following, each in form and substance reasonably satisfactory to the Administrative Agentfollowing documents: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly The Note properly executed and delivered by on behalf of the parties thereto, which shall each be in full force and effect;Borrower. (b) true The Security Agreement properly executed and complete copies of the Constituent Documents delivered on behalf of the Borrower, granting to the Equityholder Bank a first priority security interest in all Collateral Receivables and other property described therein as security for the performance of the Borrower's obligations under this Agreement and the Servicer as in effect on Note, together with any financing statement, lockbox agreement or control agreement, or other document deemed necessary or desirable by the Closing Date;Bank to perfect the security interest granted by the Security Agreement. (c) The Intercreditor Agreements acceptable to Bank in form and substance. (d) The Amendments to the Lockbox Agreement and the Lockbox Paying Agent Agreement and Supplements to the Lockbox Agreement and Lockbox Paying Agent Agreement, in all cases in form and substance acceptable to Bank. (e) An opinion of counsel to the Borrower in favor of the Bank in a form and as to such matters as the Bank may request. (f) A certificate of a Responsible Officer by the secretary of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to Borrower, approving the extent such representations execution and warranties expressly relate to any earlier date, in which case such representations delivery of the Loan Documents and warranties shall be true and correct in approving all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;other matters contemplated by this Agreement. (g) financing statements (or A certificate by the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State secretary of the State Borrower certifying the names of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary officer or desirable in order officers of the Borrower authorized to perfect sign the interests in Loan Documents, together with a sample of the Collateral contemplated by this Agreement;true signature of such officer or officers. (h) copies A certificate of proper financing statement amendments (or good standing for the equivalent thereof in any applicable foreign jurisdictionBorrower dated within 30 days of the date hereof, as applicable), if any, necessary to release all security interests and other rights articles of any Person in incorporation of the Collateral previously granted Borrower certified by the Borrower, Delaware Secretary of State as of a date within 30 days of the Equityholder or any transferor;date hereof. (i) legal opinions (addressed to each A certificate by the secretary of the Secured Parties) of counsel to Borrower certifying the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;'s bylaws. (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated A Daily Activity Report as of the Closing Date, certifying date of closing. (A) An amendment to the effect thatBankcard Marketing Agreement dated February 9, in 1999, between the case of each item of Collateral pledged parties and an amendment to the Collateral AgentPurchase Agreement dated February 9, on 1999, between the Closing Date andparties, both in the case of clauses (i) through (iii) below, immediately prior form and substance acceptable to the Bank, providing that an Event of Default occurring under this Agreement shall be an additional event of termination under the Bankcard Marketing Agreement and under the Purchase Agreement, and providing for the delivery thereof on the Closing Date: (i) the by Borrower is the owner of such Collateral free certain agreements from purchasers and clear secured parties of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, and (B) agreements from Coast, J.L.B., Thornton, Varde, and North Division Associates in form and in substance satisfactory to Bank and providing for the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedapplication of payments received on account of certain credit card accounts.

Appears in 1 contract

Samples: Revolving Credit Agreement (Credit Store Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject As conditions precedent to the conditions precedent that Initial Advance under the Administrative Agent shall have received on or before Facility by the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative AgentLender: (a) each of the Facility Documents Borrower will have: (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agenti) duly executed and delivered by to the parties thereto, which shall each be Lender a Drawing Notice prior to the date of the Initial Advance; and (ii) executed and delivered to the Lender a promissory note in full force and effectthe form attached hereto as Schedule “B” (the “Note”) in the principal amount of the Initial Advance; (b) true the Credit Parties will have: (i) executed and complete delivered or caused to be executed and delivered all of the security documents referred to in paragraph 9 above and the documents, securities and instruments referred therein, except that security referred to in subparagraph 9(d) above, and the Lender will have completed all registrations and other filings that may be prudent or necessary to perfect the Lender’s security therein; (ii) delivered certified copies of their directors’ resolutions authorizing the Constituent Documents borrowing or guaranteeing of the BorrowerFacility, as the case may be, the Equityholder grant of the Security and the Servicer as execution and delivery of this Agreement and all agreements, documents and instruments referred to herein, together with officer’s certificates, certifying certain factual matters; and (iii) caused to be executed and delivered legal opinions of the Credit Parties’ Canadian and United States counsel, in effect on form and terms satisfactory to the Closing DateLender and its counsel, acting reasonably; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, Credit Parties contained in which case such representations and warranties shall paragraph 12 will be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as the Credit Parties will have complied with all covenants required to be complied with by them prior to the incumbency and specimen signature of each of its Responsible Officers authorized to execute Initial Advance under the Facility Documents by the Lender (including but not limited to which it is a partythe payment of the Structuring Fee, the Standby Fee and that portion of the Bonus payable in connection with the Initial Advance); (d) [Reserved]there shall have been no adverse material change in the business, operations, assets or ownership of the Credit Parties or any of their respective Subsidiaries, taken as a whole, since the date of the Term Sheet; (e) [Reserved]the Lender will have completed and, in its sole and absolute discretion, be satisfied with its due diligence review of the Credit Parties and their respective Subsidiaries, properties and assets, including but not limited to the Hycroft Mine and all valuations, mine plans, budgets, permits and pro forma financial statements in respect thereof, and shall have satisfactorily completed a site visit of the Hycroft Mine; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier dateLender will, in which case such representations its sole and warranties shall absolute discretion, be true and correct in all material respects as of such earlier date), and (iv) satisfied as to the incumbency creditworthiness of the Credit Parties and specimen signature their respective Subsidiaries and the adequacy of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partycollateral security contemplated herein; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on Lender shall have completed the Closing Date, under the UCC with the Secretary of State syndication of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;Facility; and (h) copies the Lender shall have received the approval of proper financing statement amendments (its board of directors; all in form and terms satisfactory to the Lender and its counsel. If any of the foregoing conditions precedent are not satisfied or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted waived by the BorrowerLender in writing on or before March 18, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower2008, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been establishedthis Agreement will terminate, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall Lender will be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior under no further obligation to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, Credit Parties in connection with the transactions transaction contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedherein.

Appears in 1 contract

Samples: Credit Agreement (Allied Nevada Gold Corp)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial the Initial Advance hereunder shall be is subject to satisfaction of the following conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentprecedent: (a) each receipt by Lender of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly fully executed and delivered by the parties thereto, which shall each be in full force and effectAdvance Request; (b) true the Coverage and complete copies LTV Tests are satisfied and the maximum Advance Amount is not exceeded; (c) the Individual Property Coverage and LTV Tests are satisfied; (d) if the Initial Advance includes a Variable Advance, receipt by Lender at least three (3) days prior to the Initial Closing Date, of the Constituent Documents confirmation of an Interest Rate Cap commitment, in accordance with the Cap Security Agreement, effective as of the Borrower, the Equityholder and the Servicer as in effect on the Initial Closing Date; (ce) if the Initial Advance includes a certificate of a Responsible Officer Variable Advance, receipt by Lender of the Borrower certifying Interest Rate Cap Documents (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth defined in the Facility Documents to which it is a party are true and correct in all material respects Cap Security Agreement), effective as of the Initial Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]Date; (f) a certificate of a Responsible Officer of delivery to the Servicer certifyingTitle Company, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct for filing and/or recording in all material respects as applicable jurisdictions, of the Closing Date (except all applicable Loan Documents required by Lender to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date)filed or recorded, and (iv) as funds adequate to the incumbency pay all taxes, fees and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyother charges payable in connection with such execution, delivery, recording and filing; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State receipt by Lender of the State of Delaware Initial Origination Fee pursuant to Section 10.01(a) and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order Initial Due Diligence Fee pursuant to perfect the interests in the Collateral contemplated by this AgreementSection 10.02(a); (h) copies receipt by Lender of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferora Funding Commitment; (i) legal opinions (addressed delivery by Lender to each Borrower of the Secured Parties) of counsel confirmed Rate Form for the Initial Advance pursuant to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestSection 2.01(c); (j) evidence reasonably satisfactory to it that if the Advance is a Fixed Advance, delivery of one (1) or more Fixed Facility Notes duly executed by Borrower in the amount reflecting all of the Covered Accounts shall have been established, and terms of the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effectFixed Advance; (k) evidence that (i) all fees and expenses due and payable to each Lender on if the Advance is a Variable Advance, delivery of one or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, more Variable Facility Notes duly executed by Borrower in the case amount reflecting all of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by terms of the Borrower;Variable Advance; and (l) delivery receipt by Lender of such Collateral (including any promissory note, executed assignment agreements documents and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received instruments required by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free Section 5.09 and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 5.10.

Appears in 1 contract

Samples: Master Credit Facility Agreement (Newcastle Investment Corp)

Conditions Precedent to Initial Advance. The obligation of each Lender --------------------------------------- the Banks to make its the initial Advance hereunder shall be under this Agreement, irrespective of satisfaction of any conditions under the Line of Credit prior to previous Advances, is subject to the conditions precedent that satisfaction, in the Administrative Agent shall have received sole discretion of the Banks, on or before the Closing Date date hereof of the following, each in form and substance reasonably satisfactory to the Administrative Agentfollowing conditions precedent: (a) each The Banks shall have received the following, all of the Facility Documents (other than the Collateral Agent Fee Letter which shall must be delivered directly satisfactory in form and content to the Collateral AgentBanks, in their sole discretion: (1) The Notes duly executed and delivered by the parties thereto, which shall each be in full force and effectCompany; (b2) true and complete The Guaranty, in the form attached hereto as Exhibit D, --------- duly executed by Prism; (3) Certified copies of the Constituent Documents Company's articles of organization and operating agreement, and certificates of good standing dated no less recently than ten (10) days prior to the Borrower, the Equityholder and the Servicer as in effect on the Closing Datedate of this Agreement; (c4) a certificate A written opinion of counsel to the Company and counsel to the Guarantor (each such counsel shall be acceptable to the Banks, in their sole discretion) in form and content satisfactory to the Banks, dated as of, or prior to, the date of this Agreement, addressed to the Banks. (5) An original resolution of the members of the Company, certified as of the date of this Agreement by an individual possessing powers on behalf of the Company analogous to those of a Responsible Officer corporate secretary (such individual is for purposes of this Agreement hereinafter referred to as the Borrower certifying (i) as to its Constituent Documents"Secretary"), (ii) as to its resolutions or other action authorizing the execution, delivery and performance of its designated manager approving this Agreement and the Notes, and all other Facility Documents instruments or documents to which it is a party and be delivered by the transactions contemplated hereby and thereby, Company pursuant to this Agreement; (iii6) that its representations and warranties set forth A certificate of the Company's Secretary in the Facility Documents to which it is a party are true and correct in all material respects form attached hereto as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) Exhibit F as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer authenticity of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action --------- signatures of its board the representatives of directors or members approving the Company executing this Agreement and the Notes and each Request and all other Facility Documents instruments or documents to which it is be delivered pursuant hereto (the Banks being entitled to rely thereon until a party new such certificate has been furnished to the Banks); (7) Original financial statements of the Company for the most recent fiscal year end (the "Statement Date") containing a balance sheet and related statements of income and retained earnings and changes in financial position for the transactions contemplated hereby period ended on the Statement Date, all prepared in accordance with a tax basis of accounting , and therebyapplied on a basis consistent with prior periods and acceptable to the Banks; (8) Financial statements of the Guarantor, duly certified as true, correct and complete by an officer, dated no less recently than June 30, 1999; (iii9) that its representations Copies of the Company's insurance policies or certificates in lieu of policies, all in form and warranties set forth in content satisfactory to the Facility Documents to which it is a party are true and correct in all material respects Bank, showing compliance by the Company as of the Closing Date (except to date of the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as initial Advance with the related provisions of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partySection 6.9 hereof; (g10) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State A certified copy of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;Investment Criteria; and (h11) copies Payment to Banks for reimbursement of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all out-of-pocket fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, incurred by Banks in connection with the transactions contemplated hereby negotiation and documentation of the Loan. (to the extent invoiced prior the Closing Date); and (iii12) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that areA UCC-1 Financing Statement, in the case form of clauses (ii) Exhibit G --------- attached hereto executed by Borrower and (iii), invoiced at least one Business Day prior evidencing Borrower's grant to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies Agent on behalf of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate Banks of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by . (Notwithstanding anything to the contrary in this Agreement; and, the Banks shall be under no obligation to fund any Advance hereunder until the Banks shall have received a post-filing lien search evidencing the appropriate filing of the Financing Statement and disclosing no notice of any liens or encumbrances filed against any of the Collateral other than the Financing Statement and other liens in favor of the Banks.) (n13) such other opinionsUniform Commercial Code, instrumentspending litigation, certificates tax lien, judgment and documents from bankruptcy searches dated no more than thirty (30) days prior to the Borrower date hereof and updated as frequently as the Agents Banks may reasonably request. (14) Such other documents, instruments and agreements as the Banks shall reasonably request, in form and substance satisfactory to the Banks. (15) At the sole discretion of the Banks, the Banks may require any member or manager of the Company, all Affiliates of the Company or of any Lender Subsidiary of the Company, and the Guarantor, to whom, or to any of whom, the Company shall be indebted as of the date of this Agreement, to duly execute a Subordination of Debt Agreement, in form attached hereto as Exhibit H; and the --------- Banks shall have reasonably requestedreceived an executed copy of said Subordination of Debt Agreement, certified by the Secretary of the Company to be true, correct and complete and in full force and effect as of the date of the Advance, or if a Subordination of Debt Agreement has been executed and delivered previously, an acknowledgment by such creditor of the increased amount of the Loan hereby evidenced and the continued validity of such Subordination of Debt Agreement with respect to the Loan as hereby restated.

Appears in 1 contract

Samples: Line of Credit Agreement (Prism Financial Corp)

Conditions Precedent to Initial Advance. The obligation effectiveness of each Lender this Agreement and obligations of Bank to make its initial Advance hereunder shall be Advances are subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date all the following, each in form and substance reasonably satisfactory to the Administrative AgentBank: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) This Agreement, duly executed by Borrower and delivered by the parties thereto, which shall each be in full force and effect;Bank. (b) true and complete copies of the Constituent Documents of the The Note, duly executed by Borrower, the Equityholder and the Servicer as in effect on the Closing Date;. (c) a certificate The Security Agreement duly executed by Borrower. (d) Copies of a Responsible Officer UCC, tax and judgment lien search reports listing all financing statements and other encumbrances which name Borrower (under its present name and any previous name) and which are filed in the jurisdictions in which Borrower is located, organized or maintains collateral, together with copies of such financing statements (none of which shall cover the Borrower certifying collateral purported to be covered by the Security Agreement). (ie) as Evidence that all other actions necessary or, in the opinion of Bank, desirable to its Constituent enable Bank to perfect and protect the security interests created by the Security Agreement have been taken. (f) The Organizational Documents, . (iig) as to its such certificates of resolutions or other action action, incumbency certificates and/or other certificates of its designated manager approving the officers of Borrower as Bank may require evidencing the identity, authority and capacity of each officer thereof authorized to act as an officer in connection with this Agreement and the other Facility Loan Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it Borrower is a party; (dh) [Reserved]; (e) [Reserved]; (f) a certificate such documents and certificates as Bank may reasonably require to evidence that Borrower is duly organized or formed and that Borrower is, validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of a Responsible Officer of properties or the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action conduct of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and therebybusiness requires such qualification, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate that failure to any earlier date, in which case such representations and warranties shall do so could not reasonably be true and correct in all material respects as of such earlier date), and (iv) as expected to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is have a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorMaterial Adverse Effect; (i) legal opinions Evidence that the costs and expenses (addressed including, without limitation, attorneys’ fees) referred to each of the Secured Parties) of counsel in Section 7.04(a), to the Borrowerextent incurred and invoiced, shall have been (or will be simultaneously with the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;initial Advance hereunder) paid in full. (j) evidence reasonably A satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered review by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear Bank of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant pending litigation relating to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Credit Agreement (Fitlife Brands, Inc.)

Conditions Precedent to Initial Advance. The obligation of each Lender the Lenders to make its the initial Advance hereunder shall be is subject to the conditions precedent that prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received on or before each of the Closing Date following (with sufficient copies for each of the followingLenders), each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders: (ai) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents loan certificate of the Borrower, in substantially the Equityholder and the Servicer form attached hereto as in effect on the Closing Date; (c) Exhibit O, including a certificate of incumbency with respect to each Authorized Signatory, together with appropriate attachments which shall include without limitation, the following items: (A) a Responsible Officer copy of the Borrower certifying (i) as certificate of incorporation of the Borrower, certified to its Constituent Documentsbe true, complete and correct by the Secretary of State of Delaware, and a true, complete and correct copy of the by-laws of the Borrower, (iiB) as certificates of good standing for the Borrower issued by the Secretary of State or similar state official for each state in which 46 the Borrower is required to its qualify or has qualified to do business, (C) a true, complete and correct copy of the appropriate authorizing resolutions or other action of its designated manager approving the Borrower, authorizing the Borrower to execute, deliver and perform this Agreement and the other Facility Loan Documents to which it is a party party, and (D) a true, complete and correct copy of any agreement in effect with respect to the transactions contemplated hereby voting rights, ownership interests, or management of the Borrower; (ii) duly executed Notes and thereby, Fee Letters; (iii) that duly executed Borrower's Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank; (iv) duly executed Security Agreement, together with evidence of the filing of appropriate UCC-1 financing statement forms; (v) duly executed Subsidiary Security Agreement, executed and delivered by each Restricted Subsidiary of the Borrower, together with evidence of the filing of appropriate UCC-l financing statement forms; (vi) copies of insurance binders or certificates covering the assets of the Borrower and its representations Restricted Subsidiaries, and warranties set forth otherwise meeting the requirements of Section 5.5 hereof; (vii) legal opinions of (i) Rubix Xxxx Xxxxx Xxxstant & Friexxxx, general counsel to the Borrower, and (ii) Gurmxx, Xxasx & Xreexxxx, XXC counsel to the Borrower and its Restricted Subsidiaries; each as counsel to the Borrower and its Restricted Subsidiaries, addressed to each Lender and the Administrative Agent, in form and substance satisfactory to the Facility Documents to which it is a party are true Administrative Agent and correct in all material respects its special counsel, and dated as of the Closing Date Agreement Date; (viii) duly executed Request for Advance for the initial Advance of the Loans, which Request for Advance shall include calculations demonstrating, as of the Agreement Date, the Borrower's compliance with the Financial Covenants hereof; (ix) duly executed Use of Proceeds Letter; (x) duly executed Certificate of Financial Condition for the Borrower and its Restricted 47 Subsidiaries on a consolidated basis, given by the chief financial officer of the Borrower which shall include a certification that no event has occurred which could have a Materially Adverse Effect since December 31, 1997; (xi) any required FCC consents, Necessary Authorizations (except as may be referred to in any Schedules hereto), or other required consents to the extent such representations closing of this Agreement or to the execution, delivery and warranties expressly relate to any earlier dateperformance of this Agreement and the other Loan Documents; (xii) duly executed Subsidiary Pledge Agreement from each Restricted Subsidiary of the Borrower which has one or more corporate Restricted Subsidiaries together with appropriate stock certificates and undated stock powers executed in blank; (xiii) duly executed Subsidiary Guaranty executed and delivered by each Restricted Subsidiary of the Borrower; (xiv) a loan certificate from each Restricted Subsidiary of the Borrower, in substantially the form attached hereto as Exhibit P, with respect to corporations, and Exhibit Q, with respect to partnerships, including a certificate of incumbency with respect to each officer or partner authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which case shall include, without limitation, the following items, if a corporation, and the analogous items, if a partnership: (A) a copy of the certificate or articles of incorporation of such representations and warranties shall Restricted Subsidiary, certified to be true true, complete and correct in all material respects as by the Secretary of State from the jurisdiction of incorporation of such earlier date)Restricted Subsidiary, (ivB) that no Default certificates of good standing for such Restricted Subsidiary issued by the Secretary of State or Event similar state official for each state in which such Restricted Subsidiary is incorporated or required to qualify to do business, (C) a true, complete and correct copy of Default has occurred and is continuingthe By-Laws of such Restricted Subsidiary, and (vD) as a true, complete and correct copy of the resolutions of such Restricted Subsidiary authorizing it to execute, deliver and perform the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (dxv) [Reserved]duly executed VoiceStream Guaranty; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Loan Agreement (Western Wireless Corp)

Conditions Precedent to Initial Advance. The obligation of each Lender the Banks to undertake the Commitment and to make its the initial Advance hereunder shall be are subject to the conditions precedent that prior or contemporaneous fulfillment of each of the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentfollowing conditions: (a) The Administrative Agent and the Banks shall have received each of the Facility Documents following: (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agenti) this Agreement duly executed and delivered by the parties thereto, which shall each be in full force and effectexecuted; (bii) true and complete copies the loan certificate of the Constituent Documents Borrower dated as of the BorrowerAgreement Date, in substantially the Equityholder form attached hereto as Exhibit K, 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 Servicer Certificate of Incorporation and By-laws of the Borrower as in effect on the Closing Agreement Date; , (cB) a certificate certificates of a Responsible Officer good standing for the Borrower issued by the Secretary of State or similar state official for the state of incorporation of the Borrower certifying (i) as and for each state in which the Borrower is required to its Constituent Documentsqualify to do business, (iiC) as a true, complete and correct copy of the corporate resolutions of the Borrower authorizing the Borrower to its resolutions or other action of its designated manager approving execute, deliver and perform this Agreement and the other Facility Documents Loan Documents, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to which it is a party and the transactions contemplated hereby and thereby, stock of the Borrower; (iii) duly executed Notes; (iv) duly executed Security Documents; (v) copies of insurance binders or certificates covering the assets of the Borrower and its Restricted Subsidiaries, and otherwise meeting the requirements of Section 5.5 hereof, together with copies of the underlying insurance policies; (vi) legal opinion of Xxxxxxxx & Worcester LLP counsel to the Borrower; addressed to each Bank and the Administrative Agent and dated as of the Agreement Date; (vii) duly executed Certificate of Financial Condition for the Borrower and its Restricted Subsidiaries on a consolidated and consolidating basis, given by the chief financial officer of the Borrower; (viii) copies of the most recent quarterly financial statements of the Borrower and its Restricted Subsidiaries provided to each Bank and each Administrative Agent, certified by the chief financial officer of the Borrower; (ix) all such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested. (b) The Administrative Agent and the Banks shall have received evidence satisfactory to them that its all Necessary Authorizations, including all necessary consents to the closing of this Agreement, have been obtained or made, are in full force and effect and are not subject to any pending or, to the knowledge of the Borrower, threatened reversal or cancellation, and the Administrative Agent and the Banks shall have received a certificate of an Authorized Signatory so stating. (c) The Borrower shall certify to the Administrative Agent and the Banks that each of the representations and warranties set forth in the Facility Documents to which it is a party Article 4 hereof are true and correct in all material respects as of the Closing Agreement Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and then exists or is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;. (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the The Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) have received evidence reasonably satisfactory to it that all the Parent or American Radio Systems has contributed not less than $25,000,000 of equity into the Covered Accounts Borrower comprised of not less than $15,000,000 in cash (or acquisitions of property from non- Affiliates made with Capital Stock of American Radio Systems) and the balance in tangible assets (valued at American Radio Systems's cost for such assets). (e) The Borrower shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel paid to the Administrative Agent, Agent for the account of each Bank the facility fees set forth in connection with those letter agreements dated the transactions contemplated hereby Agreement Date in favor of each Bank. (to the extent invoiced prior the Closing Date); and (iiif) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral The Administrative Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid received evidence reasonably satisfactory to it that no real property owned by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word Borrower is located in a Federal or pdf copies of the principal credit agreement for each initial Collateral Loanstate designated flood zone or, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if that any such interest has been assignedreal property is located in a Federal or state designated flood zone, pledged or otherwise encumbered, evidence satisfactory to it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) that such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedreal property is sufficiently insured against flood related losses.

Appears in 1 contract

Samples: Loan Agreement (American Tower Systems Corp)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Borrower shall be have delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reservedintentionally omitted]; (ec) [Reserved]; (f) Borrower shall have delivered its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State of Delaware and California as of a date no earlier than thirty (30) days prior to the Effective Date; (d) Borrower shall have delivered duly executed original signatures to the completed Borrowing Resolutions for Borrower; (e) Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction such financing statements either constitute Permitted Liens or have been terminated or released; (f) Borrower shall have delivered the Perfection Certificate executed by Borrower; (g) Borrower shall have delivered evidence satisfactory to Bank that the Administrative Agent deems necessary insurance policies required by Section 6 hereof are in full force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or desirable endorsements in order to perfect the interests in the Collateral contemplated by this Agreementfavor of Bank; (h) copies of proper financing statement amendments (or Borrower shall have paid the equivalent thereof fees and Bank Expenses then due as specified in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;Section 2.4 hereof; and (i) legal opinions (addressed to each of the Secured Parties) of counsel to the BorrowerValeant Pharmaceuticals International, the Equityholdera Delaware corporation, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior a Licensee Agreement to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel Bank relating to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that areValeant License, in the case form of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.Exhibit A.

Appears in 1 contract

Samples: Loan and Security Agreement (Senetek PLC /Eng/)

Conditions Precedent to Initial Advance. The obligation of each Lender Bank to make its the initial Advance hereunder shall be after the date hereof is subject to the conditions condition precedent that the Administrative Agent Bank shall have received received, on or before the Closing Date day such Advance is made, the following, each all in form and substance reasonably satisfactory to the Administrative AgentBank: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) The Note, duly executed and delivered by the parties thereto, which shall each be in full force and effect;Borrower. (b) true The Negative Pledge Agreement, duly executed by Borrower and complete each Subsidiary: (i) certified copies of Requests for Information or Copies, or equivalent reports acceptable to Bank, listing all effective financing statements which name Borrower (under its present name and any previous names) as debtor and which are filed in one or more of jurisdictions reasonably specified by Bank, together with copies of such other financing statements (none of which may cover the Constituent Documents any Covered Assets); (ii) judgment, tax lien and litigation searches in all relevant jurisdictions showing that there are no outstanding judgments or tax liens or pending lawsuits against Borrower or any property of the Borrower, the Equityholder and the Servicer Borrower except as in effect on the Closing Datedisclosed herein; (c) A certified copy of the resolution of the board of directors of Borrower approving and authorizing each Credit Document to which it is a party and of all documents evidencing other necessary corporate action and Governmental Approvals, if any, with respect to each such Credit Document. (d) A certificate of a Responsible Officer the Secretary or an Assistant Secretary of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action the name and true signatures of its designated manager approving this Agreement and the other Facility Documents officers authorized to sign each Credit Document to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents other documents to which be delivered by it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved];hereunder. (e) [Reserved];Certificates of good standing issued by the Delaware and Florida Secretaries of State with respect to Borrower; a copy of Borrower’s articles of incorporation certified by each such Secretary of State; and a copy of Borrower’s bylaws certified as true and complete by an Authorized Representative. (f) a certificate A favorable opinion of a Responsible Officer of the Servicer certifyingXxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, respectivelyP.A., (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form counsel for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably Bank may request;. (jg) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) Either evidence that (i) all fees and expenses due and payable to each Lender on or prior Florida documentary stamp tax in the amount of $2,450 has been paid with respect to the Closing Date have been received Note or whatever certificates and affidavits Bank requires to establish that no such tax is or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, owing in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all Note or other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;Credit Documents. (lh) delivery of such Collateral (including any promissory noteSuch other approvals, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loanappraisals, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates consents and documents from the Borrower as the Agents or any Lender shall have Bank may reasonably requestedrequest.

Appears in 1 contract

Samples: Credit Agreement (Noven Pharmaceuticals Inc)

Conditions Precedent to Initial Advance. The obligation of each the Lender to make its initial Advance hereunder shall be under the Credit Facility is subject to the conditions precedent that the Administrative Agent shall have Lender having received on or before the Closing Date the following, each dated as of a date satisfactory to the Lender and in form and substance reasonably satisfactory to the Administrative AgentLender, provided that such condition precedent, being for the sole benefit of the Lender, may be unilaterally waived by it in whole or in part at any time on or before the date of the initial Advance: (a) each certified copies of the Facility Documents (other than articles and borrowing by-laws of the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties theretoBorrower, which shall each be in full force and effecttogether with a related certificate of non-restriction; (b) true and complete certified copies of the Constituent Documents resolutions of the Borrowerboard of directors of the Borrower approving and authorizing the execution, the Equityholder delivery and the Servicer as in effect on the Closing Dateperformance of this Agreement; (c) a certificate of a Responsible Officer status or like certificate with respect to the Borrower issued by the appropriate Governmental Authority of the Borrower jurisdiction of its incorporation; (d) a certificate of the Secretary or an Assistant Secretary of the Borrower, certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action the names and true signatures of its designated manager approving officers authorized to sign this Agreement and the other Facility Documents Loan Documents; (e) a certificate of a Senior Officer of the Borrower to which it is a party and the transactions contemplated hereby and thereby, (iii) effect that its all representations and warranties of the Borrower set forth in the Facility Documents to which it is a party Article 8 are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]initial Drawdown Date; (f) a certificate of a Responsible Officer of such other certificates and documentation relating to the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions Borrower or other action of its board of directors or members approving this Agreement as separately agreed to by the Borrower and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyLender; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary a certificate of State a Senior Officer of the State of Delaware and any other applicable filing office in any applicable jurisdiction Borrower that the Administrative Agent deems necessary or desirable in order to perfect the interests there has been no material adverse change in the Collateral contemplated by this Agreement;financial condition or results of operations of the Borrower and its Subsidiaries, taken as a whole, from the financial condition and results of operations of the Borrower and its Subsidiaries presented in the financial statements listed in Schedule 8.1(l); and (h) copies favourable opinion of proper financing statement amendments (or counsel for the equivalent thereof Borrower to and in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each favour of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent Lender in form and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence substance reasonably satisfactory to it that all of the Covered Accounts shall have been established, Lender and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedits counsel.

Appears in 1 contract

Samples: Credit Agreement (Hub International LTD)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its initial Advance hereunder shall be is subject to the following conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentprecedent: (a) each 5.1.1 As of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies date of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties initial Advance there shall be true and correct in all material respects as of such earlier date), (iv) that exist no Default or Event of Default has under this Agreement, nor shall a material adverse change have occurred in the financial condition of the Borrower or the Guarantor. 5.1.2 Borrower shall have paid all costs and is continuingexpenses of the Bank (including, without limitation, reasonable attorney’s fees) to such date, incurred in connection with the preparation, execution and delivery of the Loan Documents and any other documents to be delivered thereunder, and (v) as to the incumbency consummation of the transactions contemplated thereby. 5.1.3 Each consent, license and specimen signature approval required in connection with the execution, delivery, performance, validity and enforceability of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;effect and shall be reasonably satisfactory in form and substance to the Bank. 5.1.4 The Bank shall have received the following, in form and substance satisfactory to it: (ka) evidence that The Note, properly executed by the Borrower. (ib) all fees Copy of Borrower’s Organization Documents, and expenses due originals or certified copies of such resolutions, consents, documents and payable to each Lender on or prior to the Closing Date certificates as may have been received or will be received contemporaneously with requested to evidence authority to negotiate, execute and deliver the Closing Date; (ii) the reasonable Loan Documents and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable related documents to which Borrower is a party, and documented up-front expenses identifying the officers of the Borrower authorized to sign each document to be delivered by it hereunder. The Bank may conclusively rely in the future on such certificate(s) as continuing in full force and fees effect until it shall receive a further certificate of Borrower canceling or amending the prior certificate(s). (including legal fees c) The Guaranty, with appropriate evidence of outside counsel each signatory’s authority to execute the same. (d) Evidence of all insurance policies required by this Agreement, if any, with terms and any fees required under the Collateral Agent Fee Letter) that arecoverage as set forth in this Agreement, in the case form of clauses (ii) certificates of insurance or certified copies thereof and (iii)a broker’s certificate that said policies are in full force and effect with the premiums prepaid and, invoiced at least one Business Day prior where applicable, duly endorsed to the Closing Date, shall have been paid by the Borrower;Bank. (le) delivery The favorable opinion of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of counsel for the principal credit agreement Bank and/or in-house counsel for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as to such matters as the Agents Bank may reasonably request. (f) Other approvals, opinions or any Lender shall have documents as the Bank may reasonably requestedrequest.

Appears in 1 contract

Samples: Credit Agreement (Amerisourcebergen Corp)

Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of each Lender the Issuing Banks to make its issue (or arrange for the issuance of) the initial Advance hereunder shall be Letter of Credit hereunder, are subject to the conditions precedent that prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received on or before the Closing Date each of the following, each in form and substance reasonably satisfactory to the Administrative Agent: (ai) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) This duly executed and delivered by the parties thereto, which shall each be in full force and effectAgreement; (bii) true and complete copies A duly executed Revolving Loan Note to each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing DateRevolving Loan Commitment; (ciii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements for all of the Borrower Parties; (iv) The Reaffirmation Agreement duly executed by the Borrower Parties; (v) To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank; (vi) To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, the duly executed Blocked Account Agreements required by Section 6.14; (vii) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group; (viii) The legal opinion of K&L Gates LLP, local counsel to the Borrower Parties, addressed to the Lender Group; (ix) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of April 30, 2016; (x) The duly executed Request for Advance for the initial Advance of the Loans, with disbursement instructions attached thereto; (xi) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a Responsible Officer copy of the Certificate of Incorporation or Formation of such Borrower certifying (i) as Party certified to its Constituent Documentsbe true, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true complete and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with by the Secretary of State of the State of Delaware such Borrower Party’s incorporation or formation, (B) a true, complete and any other applicable filing office in any applicable jurisdiction that correct copy of the Administrative Agent deems necessary bylaws or desirable in order to perfect operating agreement of such Borrower Party, (C) a true, complete and correct copy of the interests in resolutions of such Borrower Party authorizing the Collateral contemplated execution, delivery and performance by this Agreement; (h) copies such Borrower Party of proper financing statement amendments (the Loan Documents and authorizing the borrowings or the equivalent thereof in any applicable foreign jurisdictionguaranty, as applicable), if anyhereunder, necessary to release all security interests and other rights (D) a certificate of any Person good standing, existence, or similar appellation from each jurisdiction in the Collateral previously granted by the Borrowerwhich such Borrower Party is organized and, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrowerextent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Borrower Party is required to be qualified to do business; provided, that if a document referenced in clause (A) or (B) was delivered in connection with the EquityholderExisting Credit Agreement, the Servicer, the Collateral Agent and the Custodian, covering then delivery of such matters document shall not be required so long as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it applicable Borrower Party delivers an officer’s certificate certifying that all of the Covered Accounts shall no changes have been establishedmade to such document, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be such document remains in full force and effect. (xii) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries; (kxiii) Parent’s and its Subsidiaries’ financial projections, including income statement, balance sheet and statement of cash flows, prepared on a monthly basis through fiscal year 2016 and an annual basis through fiscal year 2021; (xiv) Payment of all accrued and unpaid interest, fees, costs and expenses owing to the Administrative Agent (as defined in the Existing Credit Agreement) or the Lenders (as defined in the Existing Credit Agreement) under the Existing Credit Agreement; (xv) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties (other than, with respect to assets that are not included in the Borrowing Base, insurance policies of the Borrower Parties covering such assets in foreign jurisdictions), in each case, meeting the requirements of Section 6.5; (xvi) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties; (xvii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices; (xviii) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens); (xix) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent; (xx) A certificate signed by an Authorized Signatory of the Administrative Borrower certifying that each of the applicable conditions set forth in Sections 4.2 and 4.3 have been satisfied; (xxi) That certain Master Assignment and Assumption Agreement duly executed by each of the parties thereto; and (xxii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested. (b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations or financial condition of the Borrower Parties shall have occurred since January 30, 2016, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating. (c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group. (d) The Lender Group shall have received evidence satisfactory to them that (i) all fees Necessary Authorizations are in full force and expenses due effect and payable are not subject to each Lender on any pending or prior to the Closing Date threatened reversal or cancellation, and all applicable waiting periods have been received expired, and that no other consents or will be received contemporaneously with the Closing Date; approvals are required and (ii) there is no ongoing investigation or inquiry by any Governmental Authority regarding (A) the reasonable Loans or any other transaction contemplated by the Loan Documents or (B) the conduct of the businesses and documented fees the ownership (or lease) of the Properties of the Borrower Parties, except, with respect to this clause (ii)(B), as could not reasonably be expected to have a Materially Adverse Effect, and expenses the Lender Group shall have received a certificate of Cadwaladeran Authorized Signatory of the Administrative Borrower so stating. (e) The Administrative Agent and the Lenders shall have received all documentation and information required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws. (f) The Administrative Agent shall have completed such other business, Xxxxxxxxxx & Xxxx LLPfinancial, counsel collateral, regulatory and legal due diligence with respect to the Borrower Parties and the results thereof shall be acceptable to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedits sole discretion.

Appears in 1 contract

Samples: Credit Agreement (Oxford Industries Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender the Bank to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, the following: (a1) each of this Agreement, the Facility Documents (other than Notes and the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectSecurity Documents; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c2) a certificate of a Responsible Officer the Secretary or other appropriate officer of the each Borrower certifying (i) as with respect to its Constituent Documentsorganization documents, incumbency and resolutions and original powers of attorney (iiif relevant) as to its resolutions or other action authorizing the execution and delivery of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (d3) [Reserved]the Warrant; (e4) [Reserved]subordination agreements (including a deed of priority and subordination with respect to certain assets of MPL located in Australia) acceptable in form and substance to the Bank with ANZ Bank and investors in the Borrowers who are parties to the Investor Loan Documents; (f5) a certificate opinions of a Responsible Officer Borrowers' U.S. and Australian counsel satisfactory in form and substance to the Banks; (6) guaranties by the Guarantor(s), provided, however, the Bank agrees that the Borrowers may postpone delivery of such guaranties until the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of 30th day following the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters long as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of Borrowers provide the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or Bank prior to the Closing Date have been received or reasonable assurance that such guaranties will be received contemporaneously with available within such period. (7) financing statements (Forms UCC-1), Australian Securities Commission forms, or other filings necessary to perfect the Closing Date; (ii) the reasonable security interests and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required charges granted under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the BorrowerSecurity Documents; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected8) insurance certificate; (m9) a certificate of a Responsible Officer payment of the Borrower, dated as of the Closing Date, certifying to the effect that, fees and Bank Expenses then due specified in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted LiensSection 2.5 hereof; (ii10) receipt of the Borrower has not assignedresults of the initial accounts receivable audit, pledged or otherwise encumbered any interest which shall be satisfactory in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant form and substance to this Agreementthe Bank; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n11) such other opinionsdocuments, instrumentsand completion of such other matters, as the Bank may reasonably deem necessary or appropriate. (12) evidence that such Security Document required to be stamped with duty under Australian law has been lodged for stamping at the Victorian Office of State Revenue with a check for the appropriate stamp duty, unless the Bank is advised by its Australian counsel that as a matter of Australian practice such evidence may be furnished on a post-closing basis. (13) all documents and evidence of title to the property pledged by the MPL Share Mortgage and the other Security Documents including, but not limited to, share certificates and documents blank signed share transfers for all the shares pledged under any Security Document together with a certified copy of the share register to establish that all certificates have been received. (14) a certificate from the Borrower as Responsible Officer of MPL indicating that (i) at the Agents or any Lender shall have reasonably requesteddate of the MPL Deed of Charge (Future Property), the value of the property owned by MPL in all Australian States (other than Victoria) is less than AUS $100,000 and (ii) at the date of the MPL Deed of Charge (Victoria), the value of the property owned by MPL in the State of Victoria, Australia is less than $AUS 2,000,000.

Appears in 1 contract

Samples: Loan Agreement (Moldflow Corp)

Conditions Precedent to Initial Advance. The Lender’s obligation of each Lender to make its the initial Advance, which initial Advance hereunder shall be not exceed $600,000, is subject to the conditions condition precedent that the Administrative Agent Lender shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentLender in its sole discretion, such documents, and completion of such other matters, as Lender may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLoan Documents; (b) true Borrower’s Operating Documents and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a good standing certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with certified by the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that as of a date no earlier than sixty (60) days prior to the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementEffective Date; (hc) copies of proper financing statement amendments (or duly executed original signatures to the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the completed Borrowing Resolutions for Borrower, the Equityholder or any transferor; (id) legal opinions certified copies, dated as of a recent date, of bankruptcy, judgment and lien searches, as Lender shall request, accompanied by written evidence (addressed to each of including any UCC termination statements) that the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent Liens and the Custodian, covering judgments indicated in any such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall search results either constitute Permitted Liens or have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agentor, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that areinitial Advance, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrowerwill be terminated or released; (le) delivery the Perfection Certificate of such Collateral (including any promissory noteBorrower, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance together with the Custodian Agreement shall have been effectedduly executed original signatures thereto; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (if) the Borrower is Solvency Certificate, together with the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreementduly executed original signatures thereto; and (g) a duly completed Schedule 3.1(g) containing the following information for each creditor of the Borrower to be paid from the initial Advance: i) the full legal name of the creditor; ii) contact information; iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreementamount to be paid; iv) payment instructions; and v) back-up documentation in support of the payment to be made (n) such other opinionsi.e., instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.an invoice)

Appears in 1 contract

Samples: Loan Agreement (Net Element International, Inc.)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its the initial Advance hereunder shall be is subject to the fulfillment, to the satisfaction of Lender, of each of the following conditions precedent that the Administrative Agent shall have received on or before the Closing Date Date: (a) Lender shall have received each of the followingfollowing documents, each dated the Closing Date and in form and substance reasonably satisfactory to the Administrative AgentLender: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agenti) duly executed and delivered by the parties thereto, which shall each be in full force and effectcounterpart of this Agreement; (bii) any UCC financing statement; (iii) duly executed Control Agreement and all documents contemplated thereby; (iv) duly executed Customer Account Agreement and all documents contemplated thereby; (v) duly executed Custody Agreement; (vi) certified copies of (A) the Organization Documents (including any amendments or supplements thereto) of Borrower, (B) resolutions authorizing and approving the execution, delivery and performance by Borrower of this Agreement, the Control Agreement, the Customer Account Agreement and the Advances hereunder, (C) the Investment Advisory Agreement between Borrower and Investment Adviser, and (D) documents evidencing all other company action, governmental approvals and third-party consents required to effectuate this transaction, if any, with respect to this Agreement, and any other Facility Document; (vii) certificates of Borrower and Investment Adviser certifying the names and true signatures of the Responsible Officers of Borrower and complete Investment Adviser authorized to sign this Agreement, any other Facility Documents, or any other document to be delivered hereunder or thereunder; (viii) copies of the Constituent Organization Documents (including any amendments or supplements thereto, but excluding the operating agreement or the equivalent) of the Borrower, the Equityholder and the Servicer Investment Adviser certified as in effect on of a recent date not more than thirty (30) days prior to the Closing Date; (cix) a certificate certificates evidencing the good standing of a Responsible Officer Borrower and Investment Adviser in its jurisdiction of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or formation and each other action of its designated manager approving this Agreement and the other Facility Documents to which material jurisdiction where it is qualified to do business dated a party and the transactions contemplated hereby and thereby, date not earlier than ten (iii10) that its representations and warranties set forth in the Facility Documents Business Days prior to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency good standing of Borrower and specimen signature Investment Adviser; (x) an opinion of each counsel to Borrower in form and substance reasonably satisfactory to Lender; and (xi) the results of Lien searches on Borrower in Delaware, obtained by and reasonably satisfactory to Lender. (b) evidence reasonably satisfactory to Lender that the Collateral Account has been established; (c) evidence reasonably satisfactory to Lender that Borrower has offered to purchase 100% of its Responsible Officers authorized to execute the Facility Documents to which it is a partyoutstanding AMPS either by tender or redemption; (d) [Reserved];evidence reasonably satisfactory to Lender that Borrower or any of its Affiliates has made the public disclosure regarding the tender or redemption of the AMPS and such public disclosure contains a statement acceptable to Lender detailing (i) the use of the proceeds of this Facility to satisfy, in whole or in part, the purchase price or redemption of the AMPS, (ii) any BofAML Entity’s potential ownership of the AMPS (which it may or may not deliver into the offer to purchase by tender financed with the proceeds of this Facility), and (iii) any other material relationship or related party transaction that Borrower may have with any BofAML Entity; and (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as all fees required to its Constituent Documents, (ii) as to its resolutions be paid on or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of before the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Margin Loan Agreement (Advent Claymore Convertible Securities & Income Fund)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial the Initial Advance hereunder shall be is subject to Lender’s determination that each of the following conditions precedent that has been satisfied: (a) Receipt by Lender of the Administrative Agent shall have received on or before fully executed Advance Request; (b) The Coverage and LTV Tests are satisfied; (c) If the Initial Advance includes a Variable Advance, receipt by Lender at least five (5) days prior to the Initial Closing Date Date, of the followingconfirmation of an Interest Rate Cap Colonial/PNC ARCS — Master Credit Facility Agreement commitment, each in accordance with the Cap Security Agreement, effective as of the Initial Closing Date; (d) If the Initial Advance includes a Variable Advance, receipt by Lender of Interest Rate Cap Documents in accordance with the Cap Security Agreement, effective as of the Initial Closing Date; (e) Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed and delivered original copies of the Initial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, and other appropriate instruments, in form and substance reasonably satisfactory to Lender and in form proper for recordation, as may be necessary in the Administrative Agent: (a) each opinion of Lender to perfect the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered Liens created by the parties theretoapplicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as payment of all taxes, fees and other charges payable in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documentsconnection with such execution, (ii) as to its resolutions or other action of its designated manager approving this Agreement delivery, recording and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]filing; (f) a certificate Receipt by Lender of a Responsible Officer of the Servicer certifyingany required subordination, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement non-disturbance and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate attornment agreements and/or estoppel certificates with respect to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to commercial leases affecting the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyInitial Mortgaged Property; (g) financing statements (or If the equivalent thereof in any applicable foreign jurisdictionInitial Advance is a Variable Advance, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State receipt by Lender of the State first installment of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementVariable Facility Fee; (h) copies Receipt by Lender of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicableInitial Origination Fee pursuant to Section 10.02(a) and the Initial Due Diligence Fee pursuant to Section 10.03(a), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;; and (i) legal opinions (addressed Delivery by Lender to each Borrower of the Secured Parties) of counsel to confirmed Rate Form for the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted Initial Advance pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.01(c).

Appears in 1 contract

Samples: Master Credit Facility Agreement (Colonial Properties Trust)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Borrower shall be have delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]Borrower shall have delivered duly executed original signatures to the Control Agreements; (ec) [Reserved]; (f) Borrower shall have delivered its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State of Delaware and as of a date no earlier than thirty (30) days prior to the Effective Date; (d) Borrower shall have delivered duly executed original signatures to the completed Borrowing Resolutions for Borrower; (e) Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Advance, will be terminated or desirable released; (f) Borrower shall have delivered the Perfection Certificate(s) executed by Borrower; (g) Borrower shall have delivered a landlord’s consent executed by Borrower’s landlord in order to perfect the interests in the Collateral contemplated by this Agreementfavor of Bank; (h) copies of proper financing statement amendments (or Borrower shall have delivered the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary insurance policies and/or endorsements required pursuant to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorSection 6.5 hereof; (i) legal opinions (addressed to each of Borrower shall have paid the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent fees and the Custodian, covering such matters Bank Expenses then due as the Administrative Agent and its counsel shall reasonably request;specified in Section 2.4 hereof; and (j) evidence reasonably satisfactory to it that all of the Covered Accounts Bank shall have been established, received and the Account Control Agreement shall have been executed and delivered by the approved an audit of Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the ’s Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Loan and Security Agreement (Intrusion Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender the Banks to undertake the Commitment and to make its the initial Advance hereunder shall be are subject to the conditions precedent that prior or contemporaneous fulfillment of each of the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentfollowing conditions: (a) The Administrative Agent and the Banks shall have received each of the Facility Documents following: (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agenti) this Agreement duly executed and delivered by the parties thereto, which shall each be in full force and effectexecuted; (bii) true and complete copies the loan certificate of the Constituent Documents Borrower dated as of the BorrowerAgreement Date, in substantially the Equityholder form attached hereto as Exhibit K, 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 Servicer Certificate of Incorporation and By-laws of the Borrower as in effect on the Closing Agreement Date; , (cB) a certificate certificates of a Responsible Officer good standing for the Borrower issued by the Secretary of State or similar state official for the state of incorporation of the Borrower certifying (i) as and for each state in which the Borrower is required to its Constituent Documentsqualify to do business, (iiC) as a true, complete and correct copy of the corporate resolutions of the Borrower authorizing the Borrower to its resolutions or other action of its designated manager approving execute, deliver and perform this Agreement and the other Facility Documents Loan Documents, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to which it is a party and the transactions contemplated hereby and thereby, stock of the Borrower; (iii) duly executed Notes; (iv) duly executed Security Documents; (v) copies of insurance binders or certificates covering the assets of the Borrower and its Restricted Subsidiaries, and otherwise meeting the requirements of Section 5.5 hereof, together with copies of the underlying insurance policies; (vi) legal opinion of Sullivan & Worcester LLP counsel to the Borrower; addressed to each Bank and the Administrative Agent and dated as of the Agreement Date; (vii) duly executed Certificate of Financial Condition for the Borrower and its Restricted Subsidiaries on a consolidated and consolidating basis, given by the chief financial officer of the Borrower; (viii) copies of the most recent quarterly financial statements of the Borrower and its Restricted Subsidiaries provided to each Bank and each Administrative Agent, certified by the chief financial officer of the Borrower; (ix) all such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested. (b) The Administrative Agent and the Banks shall have received evidence satisfactory to them that its all Necessary Authorizations, including all necessary consents to the closing of this Agreement, have been obtained or made, are in full force and effect and are not subject to any pending or, to the knowledge of the Borrower, threatened reversal or cancellation, and the Administrative Agent and the Banks shall have received a certificate of an Authorized Signatory so stating. (c) The Borrower shall certify to the Administrative Agent and the Banks that each of the representations and warranties set forth in the Facility Documents to which it is a party Article 4 hereof are true and correct in all material respects as of the Closing Agreement Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and then exists or is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;. (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the The Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) have received evidence reasonably satisfactory to it that all the Parent or American Radio Systems has contributed not less than $25,000,000 of equity into the Covered Accounts Borrower comprised of not less than $15,000,000 in cash (or acquisitions of property from non- Affiliates made with Capital Stock of American Radio Systems) and the balance in tangible assets (valued at American Radio Systems's cost for such assets). (e) The Borrower shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel paid to the Administrative Agent, Agent for the account of each Bank the facility fees set forth in connection with those letter agreements dated the transactions contemplated hereby Agreement Date in favor of each Bank. (to the extent invoiced prior the Closing Date); and (iiif) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral The Administrative Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid received evidence reasonably satisfactory to it that no real property owned by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word Borrower is located in a Federal or pdf copies of the principal credit agreement for each initial Collateral Loanstate designated flood zone or, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if that any such interest has been assignedreal property is located in a Federal or state designated flood zone, pledged or otherwise encumbered, evidence satisfactory to it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) that such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedreal property is sufficiently insured against flood related losses.

Appears in 1 contract

Samples: Loan Agreement (American Radio Systems Corp /Ma/)

Conditions Precedent to Initial Advance. The obligation of each Lender Bank to make its the initial Advance hereunder shall be after the date hereof is subject to the conditions condition precedent that the Administrative Agent Bank shall have received received, on or before the Closing Date day such Advance is made, the following, each all in form and substance reasonably satisfactory to the Administrative AgentBank: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) The Note, duly executed and delivered by the parties thereto, which shall each be in full force and effect;Borrower. (b) true The Security Agreement, duly executed by Borrower and complete creating a perfected, first-priority security interest in all of Borrower's Accounts and inventory, and together with: (i) duly executed financing statements (Form UCC-1) (the "Financing Statements") to be duly filed under the Uniform Commercial Code of Florida and all other jurisdictions as may be necessary or, in the opinion of Bank, desirable to perfect the Security Interests; (ii) certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports acceptable to Bank, listing all effective financing statements which name Borrower (under its present name and any previous names) as debtor and which are filed in the Constituent Documents jurisdictions referred to in paragraph (i) above, together with copies of such other financing statements (none of which may cover the Collateral); (iii) judgment, tax lien and litigation searches in all relevant jurisdictions showing that there are no outstanding judgments or tax liens or pending lawsuits against Borrower or any property of Borrower except as disclosed herein; (iv) a landlord's lien waiver and agreement from the owner of each warehouse or other facility where inventory Borrower is being or may be stored with the exception of Borrower, the Equityholder and the Servicer as in effect on the Closing Date;'s headquarters building. (c) A report of Borrower's receivables agings and a certificate of Borrowing Base Certificate in a Responsible Officer form provided by Bank. (d) A certified copy of the resolution of the board of directors of Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents authorizing each Credit Document to which it is a party and the transactions contemplated hereby of all documents evidencing other necessary corporate action and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable)Governmental Approvals, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed with respect to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedCredit Document.

Appears in 1 contract

Samples: Credit Agreement (Noven Pharmaceuticals Inc)

Conditions Precedent to Initial Advance. The Lender's obligation of each Lender to make its initial the first Advance hereunder shall be is subject to the conditions precedent that satisfaction, as determined by Lender in its reasonable discretion, of the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentfollowing conditions: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Borrower shall be delivered directly to the Collateral Agent) duly have executed and delivered by to Lender the parties thereto, which shall each be Security Agreement in full force and effectthe form of EXHIBIT C (THE "SECURITY AGREEMENT"); (b) true Borrower shall have executed and complete copies delivered to Lender the Borrower Patent and Trademark Security Agreement for filing in the U.S. Patent and Trademark Office in the form of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing DateEXHIBIT D; (c) Borrower and Lender shall have entered into an Account Control Agreement with each bank, Securities Intermediary or other financial institution with whom Borrower or its Subsidiaries have an Account substantially in the form of EXHIBIT E together with such changes requested by the bank, Securities Intermediary or other financial institution and which changes are acceptable to Lender and Borrower; (d) Borrower shall have executed and delivered to Lender a certificate duly executed Promissory Note in the form of a Responsible Officer EXHIBIT A; (e) receipt by Lender of an opinion of Latham & Watkins, counsel for Borrower (or such other nationally recoxxxxxx coxxxxx xeasonably acceptable to Lender), dated as of the Borrower certifying (i) as date the first Advance is made, substantially in the form of EXHIBIT F hereto and covering such additional matters relating to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby as Lender may reasonably request; (f) Borrower and thereby, (iii) that each of its representations Subsidiaries shall have executed and warranties set forth delivered to Lender a duly executed Perfection Certificate in the Facility form of EXHIBIT B and (x) if such Perfection Certificate demonstrates that any Collateral is owned by any Subsidiary, then, to the extent necessary for Borrower to comply with its obligations under Section 6.13 hereof, such Subsidiary of Borrower shall grant a first priority perfected security interest in such Collateral to Lender and (y) if such Perfection Certificate demonstrates that any Subsidiary organized in the U.S. of Borrower owns assets worth in excess of $1,000,000 then such Subsidiary shall have executed and delivered to Lender a guaranty of the Loan Documents in customary form reasonably satisfactory to which it Lender; (g) Borrower and each of its Subsidiaries shall have executed and delivered to Lender a certificate, dated as of the date hereof and the date the first Advance is made, duly executed by its Secretary or an Assistant Secretary certifying as to: (A) a party are true and correct copy of its certificate of incorporation or certificate of formation attached thereto, as certified by the secretary of state of its jurisdiction of organization as of a date no earlier than ten (10) days prior to the date hereof and the date the first Advance is made, and stating that such certificate of incorporation or certificate of formation is in all material respects full force and effect and that there have been no amendments, alteration or modifications of such certificate (B) a true and correct copy of its bylaws or operating agreement, attached thereto, and stating that such bylaws or operating agreement are in full force and effect as of the Closing Date (except to date hereof and the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as date of such earlier date)the first Advance, (ivC) that no Default or Event the good standing certificate attached thereto from each jurisdiction where it is qualified to do business, (D) the copy of Default has occurred the resolutions attached thereto of the Board of Directors authorizing and is continuingapproving the execution, delivery and performance of, and the consummation of the transactions contemplated by, this Agreement, the other Loan Documents and any other documents or instruments contemplated hereby, and stating that the resolutions thereby certified have not been amended, modified, revoked or rescinded; and (vE) as to the incumbency incumbency, authority and specimen signature of each of its Responsible Officers authorized to execute officer executing this Agreement, the Facility Loan Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary document or desirable in order to perfect the interests in the Collateral instrument contemplated by this Agreementhereby; (h) copies of proper financing statement amendments (or the equivalent thereof no event specified in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorSection 2.6(b) shall have occurred; (i) legal opinions (addressed to each no injunctive or equitable relief has been obtained in favor of the Secured Parties) of counsel any Person other than Borrower or Lender due to the Borrower, infringement of any third party rights by the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestProducts; (j) evidence reasonably satisfactory to it that all of the Covered Accounts License Agreement shall not have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian terminated and shall be in full force and effect, and Borrower is not at such time in default or breach (x) (other than a de minimis breach) of any provision of the License Agreement or (y) of any of payment obligations under Section 5.3(a) or 6A.7 of the Collaboration Agreement or any obligation to comply with law under Section 2.2 or 6A.3(a)(i) of the Collaboration Agreement; (k) evidence that (i) all fees termination of any outstanding Liens on any assets or properties of Borrower and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all its Subsidiaries other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrowerthan Permitted Liens; (l) delivery of such Collateral (including any promissory note, executed assignment agreements Borrower and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement Subsidiaries shall have been effectedno outstanding Indebtedness other than Permitted Indebtedness; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, US Launch Date shall have occurred on the Closing Date and, in the case of clauses (i) through (iii) below, immediately or prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement[***]; and (n) such other opinions, instruments, certificates and documents from development of the Borrower as the Agents or any Lender MR Product shall not have reasonably requestedbeen terminated.

Appears in 1 contract

Samples: Secured Loan Agreement (Neurocrine Biosciences Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLoan Documents; (b) true and complete copies a good standing certificate of Borrower certified by the Secretary of State of the Constituent Documents State of Delaware as of a date no earlier than thirty (30) days prior to the Borrower, the Equityholder and the Servicer as in effect on the Closing Effective Date; (c) a certificate of a Responsible Officer the Secretary of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement that the completed and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects executed Borrowing Resolutions for Borrower delivered as of the Closing Date (except to the extent such representations March 25, 2011 remain in full force and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingeffect without modification, and (v) certifying that Borrower’s Operating Documents as most recently filed as exhibits to a filing with the incumbency SEC remain in full force and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyeffect without modification; (d) [Reserved]an amendment to the Intellectual Property Security Agreement; (e) [Reserved]certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released; (f) a certificate updated Perfection Certificates of a Responsible Officer of Borrower and each Guarantor, together with the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyduly executed original signatures thereto; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State a Reaffirmation of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated Guaranty duly executed by this Agreementeach Guarantor; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it Bank that all the insurance policies required by Section 6.4 of the Covered Accounts shall have been established, and the Account Control this Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be are in full force and effect; (k) , together with appropriate evidence that (i) all fees and expenses due and showing lender loss payable to each Lender on and/or additional insured clauses or prior to the Closing Date have been received or will be received contemporaneously with the Closing Dateendorsements in favor of Bank; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) payment of the Borrower is the owner Facility Fee as specified in Section 2.2(a) of such Collateral free this Agreement and clear all fees and Bank Expenses then due as specified in Section 2.2(c) of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Loan and Security Agreement (Adept Technology Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLoan Documents; (b) true the Operating Documents and complete copies long-form good standing certificates of Borrower and its Subsidiaries certified by the Constituent Documents Secretary of State (or equivalent agency) of Borrower’s and such Subsidiaries’ jurisdiction of organization or formation and each jurisdiction in which Borrower and each Subsidiary is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Borrower, the Equityholder and the Servicer as in effect on the Closing Effective Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except duly executed signatures to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partycompleted Borrowing Resolutions for Borrower; (d) [Reserved]certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released; (e) [Reserved]the Perfection Certificate of Borrower, together with the duly executed signature thereto; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as evidence satisfactory to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction Bank that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated insurance policies and endorsements required by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.7 hereof are in full force and effect; (k) , together with appropriate evidence that (i) all fees and expenses due and showing lender loss payable to each Lender on and/or additional insured clauses or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses endorsements in favor of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this AgreementBank; and (iiig) upon grant by payment of the Borrower, the Collateral Agent has a first priority perfected security interest fees and Bank Expenses then due as specified in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.5 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Sumo Logic, Inc.)

Conditions Precedent to Initial Advance. The obligation At the time of each the making by the Lender to make of its initial Advance hereunder shall be subject hereunder, unless otherwise waived or consented to by the Lender, (1) all obligations of the Company to the conditions precedent that Lender incurred prior thereto (including, without limitation, the Administrative Agent Company's obligation to reimburse the fees and disbursements of counsel to the Lender in accordance with this Agreement), together with the fees described in the Commitment Letter, shall have been paid in full; (2) the Lender shall have received on or before the Closing Date the following, each dated as of the Closing Date, in form and substance reasonably satisfactory to the Administrative AgentLender: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) A duly executed and delivered by the parties thereto, which shall each be in full force and effect;original of this Agreement. (b) true A duly completed and complete executed original of a Note payable to the order of the Lender in the principal amount of the Lender's Commitment. (c) A duly executed original of the Guaranty Agreement and the Contribution Agreement. (d) A duly executed original of the Company Security Agreement and the Guarantor Security Agreement, together with such UCC financing statements and UCC amendments recorded in such jurisdictions as the Lender deems necessary or desirable to perfect the security interests granted thereunder and under the Company Trademark Security Agreement. (e) Certified Requests for Information or Copies (Form UCC-11) or equivalent reports, listing all effective financing statements which name the Company or any of its Subsidiaries as debtor, together with copies of such other financing statements (none of which shall cover the Constituent Documents Collateral purported to be covered by the Company Security Agreement, the Guarantor Security Agreement and the Company Trademark Security Agreement), other than financing statements in favor of the Borrower, Lender. (f) Completion of and receipt of lien searches in all relevant jurisdictions revealing no liens on any assets of the Equityholder Company or any Guarantor except Permitted Liens and the Servicer as in effect liens to be terminated on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;. (g) financing statements A duly executed original of the Company Trademark Security Agreement, together with such filings in the United States Patent and Trademark Office as the Lender deems necessary or desirable to perfect the security interests granted under the Company Trademark Security Agreement. (h) Duly executed originals of any fixture filings and amendments to existing fixture filings recorded in such jurisdictions as the Lender deems necessary or desirable to perfect the security interests granted thereunder. (i) Duly executed originals of any Collateral Access Agreements required by (j) Evidence satisfactory to the Lender that all other actions necessary or desirable to perfect and protect the security interests created by the Security Documents have been taken. (k) Certificates of insurance issued by the Company's insurers, describing in reasonable detail the insurance maintained by the Company, together with appropriate evidence showing that the Lender has been named as loss payee or additional insured, as its interest may appear, on all insurance policies insuring property of the Company and its Subsidiaries. (l) Certificates signed by the Chief Executive Officer or the equivalent thereof in any applicable foreign jurisdiction, Chief Financial Officer of each of the Company and the Guarantors as applicableto the solvency of such Company or Guarantor. (m) in proper form for filing Payment of all fees required to be paid on or prior to the Closing Date. (n) A duly executed original of the Closing Certificate, under in the UCC with form attached hereto as Exhibit I. (o) Copies of the organizational papers of each of the Company and the Guarantors, certified as true and correct by the Secretary of State of the State in which the Company or such Guarantor is incorporated, and certificates from the Secretaries of Delaware State of the States in which the Company or such Guarantor is incorporated and any other applicable filing office of each state in any applicable jurisdiction that which the Administrative Agent deems necessary Company or desirable such Guarantor is legally required to qualify to transact business as a foreign corporation, certifying the Company's or Guarantor's good standing as a corporation in order to perfect such States. (p) Copies of the interests in bylaws of each of the Collateral contemplated by Company and the Guarantors of resolutions of the Board of Directors of each of the Company and the Guarantors approving this Agreement; (h) copies , the Note and the Borrowings hereunder, the Security Documents and all other Loan Documents to which the Company or such Guarantor is a party and of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable)all documents evidencing other necessary corporate action and governmental approvals, if any, necessary with respect to release this Agreement, the Note, the Security Documents and all security interests other Loan Documents to which the Company or such Guarantor is a party, in each case certified as true and other rights correct by the Secretary or an Assistant Secretary of any Person the Company or such Guarantor. (q) A favorable written opinion of Xxxxx, Oviatt, Gilman, Xxxxxxx & Xxxxxx LLP, General Counsel for the Company and the Guarantors, substantially in the Collateral previously granted form of Exhibit J attached hereto, and covering such additional matters relating to the transactions contemplated hereby as the Lender may reasonably request, addressed to the Lender. (r) Certified copy of the Tax Sharing Agreement. (s) Certified copies of all consents, approvals, authorizations, registrations or filings required to be made or obtained by the Borrower, Company or the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, Guarantors in connection with the transactions contemplated hereby (and by the other Loan Documents, including, without limitation consent from the United States Government pursuant to the extent invoiced prior Title XI Financing. (t) Acknowledgment as to appointment of a local agent in Florida. (u) Evidence satisfactory to the Closing Date); Lender that all primary operating accounts related to the operation and management of the Company and its Subsidiaries have been transferred to, or otherwise established, with the Lender. (iii3) all corporate and other reasonable proceedings taken or to be taken in connection with the transactions contemplated hereby and documented up-front expenses all Loan Documents and fees (including legal fees of outside counsel other documents incident thereto or delivered in connection therewith shall be satisfactory in form and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior substance to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedLender.

Appears in 1 contract

Samples: Revolving Credit Agreement (Omega Protein Corp)

Conditions Precedent to Initial Advance. The obligation effectiveness of each Lender the obligations of the Lenders to make its initial Advance hereunder shall be Advances under this Agreement is subject to the fulfillment of the following conditions precedent that the precedent: (a) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Administrative AgentAgent and in sufficient copies for each Lender (except for the Notes): (i) Counterparts of this Agreement, duly executed by the Borrower. (ii) Notes of the Borrower, duly made to the order of each Lender in the amount of such Lender's Commitment. (iii) A certificate of the Secretary or Assistant Secretary of the Borrower certifying: (aA) each the names and true signatures of the Facility Documents officers of the Borrower authorized to sign this Agreement and the Notes; (B) that attached thereto are true and correct copies of: (1) its Declaration of Trust, together with all amendments thereto, as in effect on such date; (2) the resolutions of its Board of Trustees approving this Agreement and the Notes and the other than the Collateral Agent Fee Letter which shall documents to be delivered directly by or on behalf of the Borrower hereunder; (3) all documents evidencing other necessary corporate or other similar action, if any, with respect to the Collateral Agent) duly executed execution, delivery and delivered performance by the parties theretoBorrower of this Agreement and the Notes; and (4) true and correct copies of all Governmental Approvals referred to in clause (i) of the definition of "Governmental Approval" required to be obtained or made by the Borrower in connection with the execution, which shall each be delivery and performance by the Borrower of this Agreement and the Notes. (C) that the resolutions referred to in the foregoing clause (B)(2) have not been modified, revoked or rescinded and are in full force and effect;effect on such date. (biv) true and complete copies of A certificate signed by the Constituent Documents Treasurer or Assistant Treasurer of the Borrower, certifying as to: (A) the Equityholder and SEC Borrowing Limit of the Servicer Borrower as in effect on the Closing Date; (cB) a certificate of a Responsible Officer the Aggregate Dividend Paying Availability of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects Operating Companies as of the Closing Date being an amount not less than the Total Commitment; (except C) the delivery to each of the Lenders, prior to the extent such Closing Date, of true, correct and complete copies (other than exhibits thereto) of all of the Disclosure Documents; and (D) the absence of any material adverse change in the financial condition, operations, properties or prospects of the Borrower since December 31, 1996 except as disclosed in the Disclosure Documents. (v) A certificate of a duly authorized officer of the Borrower stating that (i) the representations and warranties expressly relate to any earlier datecontained in Section 6.01 are correct, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date)respects, (iv) that no Default or Event of Default has occurred on and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except before and after giving effect to the extent Advances to be made on such representations date and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as the application of such earlier date)the proceeds thereof, and (ivii) as no event has occurred and is continuing with respect to the incumbency and specimen signature Borrower which constitutes an Event of each Default or Unmatured Default, or would result from such initial Advances or the application of its Responsible Officers authorized to execute the Facility Documents to which it is a party;proceeds thereof. (gvi) financing statements (or Such financial, business and other information regarding the equivalent thereof in any applicable foreign jurisdictionBorrower and its Principal Subsidiaries, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;shall have reasonably requested. (hvii) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;Favorable opinions of: (iA) legal opinions (addressed to each Xxxxxxx X. Xxxxxx, Esq., Assistant General Counsel of the Secured Parties) of NUSCO, counsel to the Borrower, in substantially the Equityholder, the Servicer, the Collateral Agent form of Exhibit 5.01A hereto and the Custodian, covering as to such other matters as the Administrative Agent and its counsel shall may reasonably request;; and (jB) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been establishedCravath, and the Account Control Agreement shall have been executed and delivered by the BorrowerSwaine & Xxxxx, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, special New York counsel to the Administrative Agent, in connection substantially the form of Exhibit 5.01B hereto and as to such other matters as the Administrative Agent may reasonably request. (b) The Lenders shall have completed and be satisfied with the transactions contemplated hereby results of their due diligence investigation of the Borrower and its Principal Subsidiaries. (c) All fees and other amounts payable pursuant to Section 2.02 hereof or pursuant to the Commitment Letter shall have been paid (to the extent invoiced prior then due and payable). (d) The Administrative Agent shall have received such other approvals, opinions and documents as the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under Majority Lenders, through the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing DateAdministrative Agent, shall have been paid by reasonably requested as to the Borrower; (l) delivery legality, validity, binding effect or enforceability of such Collateral (including any promissory notethis Agreement and the Notes or the financial condition, executed assignment agreements and Word operations, properties or pdf copies prospects of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedits Principal Subsidiaries.

Appears in 1 contract

Samples: Credit Agreement (Northeast Utilities System)

Conditions Precedent to Initial Advance. The Bank's obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which Borrower shall be have delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]Borrower shall have delivered duly executed original signatures to the Control Agreements; (ec) [Reserved]; (f) Borrower shall have delivered its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State States of Delaware and Utah as of a date no earlier than thirty (30) days prior to the Effective Date; (d) Borrower shall have delivered duly executed original signatures to the completed Borrowing Resolutions for Borrower; (e) Borrower shall have delivered the Subordination Agreement duly executed by Galen Partners III, LP, Galex Xxxtners International XXX, LP and Galen Employee Fund III, LP xx xxvor of Bank; (f) Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Advance, will be terminated or desirable in order to perfect released; (g) Borrower shall have delivered the interests in the Collateral contemplated Perfection Certificate(s) executed by this AgreementBorrower; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel Borrower shall reasonably request; (j) have delivered evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.5 hereof are in full force and effect; (k) , together with appropriate evidence that (i) all fees and expenses due and showing loss payable to each Lender on and/or additional insured clauses or prior to the Closing Date have been received or will be received contemporaneously with the Closing Dateendorsements in favor of Bank; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedpaid the fees and Bank Expenses then due as specified in Section 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Specialized Health Products International Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender Lender’s obligations under this Agreement to make its initial the Initial Advance hereunder as specified in the HUD-1 Settlement Statement shall be subject to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the followingconditioned upon, each in form and substance reasonably satisfactory to the Administrative Agentunless Lender otherwise agrees: (a) each Borrower’s delivery to Lender at least five (5) business days prior to the Initial Advance (or such shorter period as Lender may agree to), and Lender’s approval of the Facility Documents following: (other than i) Certificates of Insurance showing workers’ compensation insurance, public liability insurance and builder’s risk insurance from a company or companies and in form and amounts satisfactory to Lender, together with written evidence, in form and substance satisfactory to Lender, that all fees and premiums due on account thereof have been paid in full; (ii) an appraisal of the Collateral Agent Fee Letter Project on an “as if completed” basis indicating a fair market value that satisfies the minimum loan to value ratios set forth herein and which is in form and substance satisfactory to Lender performed by an independent licensed appraiser selected by Lender; (iii) an opinion of counsel for Borrower and Guarantors; (iv) authorizing resolutions, copies of the Borrower’s Articles of Organization and Operating Agreement and all amendments thereto, copies of Xxxxxxxx Homebuilding’s Certificate of Incorporation and Bylaws, a current Certificate of Fact for Borrower issued by the Commonwealth of Virginia, and a current certificate for Xxxxxxxx Homebuilding issued by the State of Delaware; (v) written evidence that the Project has been zoned, beyond any possibility of appeal, for purposes consistent with the completion of the construction of the Project and consistent with the uses contemplated by Lender, this Agreement and the Loan Documents; (vi) to the extent available, a list of the names of all major contractors and materialmen (the “Contractors”) who will perform work or supply materials in connection with the construction of the Project, together, to the extent available, with copies of all major contracts or subcontracts for such construction (“Contracts”) which shall be delivered directly subject to Lender’s approval in its reasonable discretion; and (vii) payment to Lender of a fully earned non-refundable Loan fee in the amount of $55,000 together with the payment of all third party expenses incurred by Lender in making the Loan, including, but not limited to, attorneys fees, environmental reports, credit reports, pre-construction inspections, appraisals and flood hazard certifications; and (viii) a separate policy of flood insurance in the face amount of the Note or the maximum limit of coverage available with respect to the Collateral AgentProject, whichever is the lesser, from a company or companies satisfactory to Lender and written in strict conformity with the Flood Disaster Protection Act of 1973, as amended, and all applicable regulations adopted pursuant thereto; provided, however, that in the alternative Borrower may supply Lender with written evidence, in form and substance satisfactory to Lender, to the effect that such flood insurance is not available with respect to the Land, or Borrower may provide to Lender the certificate of a professional engineer that the Land is not within a flood hazard area; (ix) duly executed a paid policy of title insurance (ALTA Standard Form “B” Loan Policy - Current Edition) or a valid and delivered enforceable commitment to issue the same, together with such reinsurance agreements and direct access agreements as may be required by Lender, from a company or companies satisfactory to Lender in the amount of the Loan and which may be endorsed or assigned to the successors and assigns of Lender without additional cost, insuring the lien of the Deed of Trust to be a valid first lien on the Project, free and clear of all defects, exceptions and encumbrances except such as Lender and its counsel shall have approved, and which contains affirmative coverage for unrecorded mechanics’ and materialmens’ liens; (x) copies of the recorded subdivision plat of the Land and/or a current survey of the Land, certified to Lender by a registered land surveyor of the jurisdiction in which the Land is located, which plat of survey shall clearly designate at least (i) the location of the perimeter of the Land by courses and distances; (ii) the location of all easements, rights-of-way, alleys, streams, waters, paths and encroachments; (iii) the location of all building restriction lines and set-backs, however established; (iv) the location of any streets or roadways abutting the Land; and (v) the then “as-built” location of any improvements and the relation of the improvements by courses and distances to the perimeter of the Land, building restriction lines and set-backs, all in conformity with the most recent Minimum Standard Detail Requirements for Property Title Surveys adopted by the parties theretoAmerican Congress on Surveying and Mapping (including any optional items required by Lender acting reasonably); (xi) a soil report which shall (i) demonstrate that the soil conditions of the Land are suitable for the construction of the Project, and (ii) evidence to Lender’s reasonable satisfaction that there are no Hydric Soils on the Land (Hydric Soils are any soil category upon which construction of Improvements would be prohibited or restricted under applicable governmental requirements, including, without limitation, those imposed by the U. S. Army Corp of Engineers); (xii) a satisfactory Phase I environmental site assessment report for the Land; (xiii) written evidence satisfactory to Lender of the availability of sanitary sewer, water and other public utilities adequate in Lender’s judgment to serve the completed Project; (xiv) certified true financial statements and tax returns of the Borrower and the Guarantors for the past three fiscal periods; (xv) the standard form of lease agreement that the Borrower will require all tenants to sign in form and substance satisfactory to the Lender; (xvi) the current detailed draw schedule for Project in form and substance satisfactory to the Lender; (xvii) the current complete and detailed Plans for the Project; and (xviii) an independent cost review of the entire Project budget and Plans by an engineer or architect selected by the Lender verifying the sufficiency of the Project budget to complete the Project as planned, which cost review shall each be in full force and effect;at the Borrower’s sole cost. (b) true The Loan Documents shall each have been duly executed by the respective parties thereto and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;delivered to Lender. (c) a certificate of a Responsible Officer of Financing statements, and any modifications thereto, shall have each been duly filed in all public offices necessary to provide public notice or protect the Borrower certifying validity and effectiveness thereof, and all taxes, fees and other charges in connection therewith shall have been paid, or appropriate provisions shall have been made with respect thereto. (id) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its The representations and warranties set forth in the Facility Documents to which it is a party Section 4 are all true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedrespects.

Appears in 1 contract

Samples: Construction Loan Agreement (Comstock Homebuilding Companies, Inc.)

Conditions Precedent to Initial Advance. The obligation of each Lender’s obligations under this Agreement shall not become effective until the Lender to make its initial Advance hereunder shall be subject to the conditions precedent that the Administrative Agent shall have has received on or before the Closing Date the following, each in full force and effect and in form and substance reasonably satisfactory to the Administrative AgentLender, acting reasonably: (a) each a certificate of the Facility Documents (other than Borrower containing the Collateral Agent Fee Letter which shall be delivered directly to financial statements of the Collateral AgentObligors as contemplated in Section 7.3(b) duly executed and delivered by the parties theretoinformation contemplated in Section 7.3(c), which shall showing compliance with the financial covenants contained in Section 7.1, in each be in full force and effectcase for the Borrower’s fiscal period ended 31 December 2004; (b) true and complete duly executed copies of the Constituent Documents of the BorrowerSecurity, the Equityholder and the Servicer as in effect on the Closing Dateduly registered; (c) a certificate of a Responsible Officer of share certificates representing the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuingPledged Shares, and (v) as executed stock powers of attorney relating to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partythose Shares; (d) [Reserved]certificates of insurance or other evidence that the covenants and conditions of the Credit Documents concerning insurance coverage are being complied with; (e) [Reserved]the Fee Agreement; (f) a certificate full payment of a Responsible Officer all fees, expenses and other amounts owing to the Lender, including fees and disbursements of the Servicer certifyingLender’s legal counsel incurred up to and including the date of this Agreement, respectivelyand without limiting the Borrower’s responsibility for all legal costs incurred before or after that date, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except including any amounts owing to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyLender’s other advisors; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction evidence that the Administrative Agent deems necessary delivery of Credit Documents will not contravene laws governing financial assistance or desirable in order to perfect other similar laws which affect the interests in the Collateral contemplated by this AgreementCredit Documents; (h) for each Obligor, a certificate to which shall be attached copies of proper financing statement amendments (or its Constating Documents, a certificate of incumbency and certified copies of the equivalent thereof in any applicable foreign jurisdictioncorporate proceedings taken to authorize it to execute, as applicable), if any, necessary to release all security interests deliver and other rights of any Person in perform its obligations under the Collateral previously granted by the Borrower, the Equityholder or any transferorCredit Documents; (i) legal opinions releases, discharges and postponements (addressed in registrable form where appropriate) covering all Encumbrances affecting the collateral Encumbered by the Security which are not Permitted Encumbrances, and all statements and acknowledgments that are required by the Lender acting reasonably in respect of other Encumbrances affecting the Property of the Obligors to confirm that each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestthose Encumbrances is a Permitted Encumbrance; (j) evidence reasonably satisfactory to it consents, if any, that all are required from the directors or shareholders of the Covered Accounts shall have been established, Obligors in connection with the Pledges of the Pledged Shares and in connection with any disposition of the Account Control Agreement shall have been executed and delivered by Shares pursuant to the Borrower, the Collateral Agent and the Custodian and shall be in full force and effectSecurity; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to a certificate of the Closing Date have been received or will be received contemporaneously with Borrower containing complete copies of the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the BorrowerMarigold Agreements; (l) delivery the opinion of such Collateral counsel to the Obligors (including opinion(s) of any promissory notelocal counsel), executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, addressed to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effectedLender and to Bxxxxx Xxxxxx Gxxxxxx LLP; (m) a certificate the opinion of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying Bxxxxx Xxxxxx Gervais LLP and any other counsel to the effect thatLender, in the case of each item of Collateral pledged addressed to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this AgreementLender; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents Lender may reasonably require. The Lender’s obligations under this Agreement are also subject to the following conditions being satisfied: (o) technical and environmental due diligence reviews of the operations of the Obligors conducted by the Lender’s mining engineers and consultants, and satisfaction with the results of such reviews; (p) the Lender being satisfied that there has not occurred or any Lender shall does not exist a circumstance or event which would or does have reasonably requesteda material adverse effect on the financial condition, assets, properties or prospects of the Obligors.

Appears in 1 contract

Samples: Credit Agreement (Glamis Gold LTD)

Conditions Precedent to Initial Advance. The obligation obligations of each Lender to undertake the Line of Credit and to make its the initial Advance hereunder shall be are subject to the conditions precedent that prior fulfillment of each of the Administrative Agent shall have received on or before the Closing Date the followingfollowing conditions, each in form and substance reasonably satisfactory to the Administrative AgentLender: (a) Lender shall have received each of the Facility following: (i) this duly executed Agreement, (ii) the duly executed Validity Guaranty, (iii) the duly executed Fee Letter, (iv) all original Collateral to be delivered to Lender pursuant to this Agreement, and transfer powers with respect thereto duly endorsed in blank, (v) the Intellectual Property Security Agreement duly executed by Borrower, (vi) the duly executed Control Agreements required by Section 6.13, (vii) the legal opinion of Xxxxxxxxx Xxxxxxx LLP, counsel to Borrower, addressed to Lender, (viii) duly executed Collateral Access Agreements as required by Lender, (ix) a loan certificate signed by the secretary or assistant secretary of Borrower, in form and substance satisfactory to Lender, including a certificate of incumbency with respect to each Responsible Officer who will be delivering Loan Documents, together with appropriate attachments which shall include the following: (A) a copy of the Articles of Incorporation of Borrower certified to be true, complete and correct by the Secretary of State of the State of Georgia, (B) a true, complete and correct copy of the bylaws of Borrower, (C) a true, complete and correct copy of the resolutions of Borrower authorizing the execution, delivery and performance by Borrower of the Loan Documents and authorizing the borrowings under the Line of Credit, (D) certificates of good standing from each jurisdiction in which Borrower does business, (E) copies of employment contracts for key management level employees of Borrower, and (F) if any, copies of all shareholders or share purchase agreements relating to the Equity Interests of Borrower, (x) a certificate of the chief financial officer of Borrower regarding the solvency and financial condition of Borrower, after giving effect to the incurrence of the initial Advance, (xi) certificates of insurance and additional insured and loss payable endorsements with respect to Borrower evidencing insurance meeting the requirements of Section 6.6, (xii) pay-off letters, termination statements, canceled mortgages and the like required by Lender in connection with the removal of any Liens (other than Permitted Liens) against the Collateral Agent assets of Borrower, (xiii) Lien search results with respect to Borrower from all appropriate jurisdictions and filing offices, (xiv) evidence satisfactory to Lender that the Liens granted pursuant to this Agreement will be first priority perfected Liens on the Collateral, (xv) payment of all fees and expenses payable to Lender and the Affiliates of Lender in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto, including all Lender Expenses and all required fees under the Fee Letter which shall Letter, (xvi) a flow of funds report that includes a statement of all sources and uses of funds on the Closing Date, and (xvii) all other Loan Documents to be delivered directly to the Collateral Agent) duly executed and delivered on or before the date hereof, duly executed by the parties thereto, which shall each be in full force and effect; (b) true Except with respect to the decrease in working capital from December 31, 2009, to December 31, 2010, as such decrease is reflected in the financial statements delivered to Lender on or prior to the Closing Date, and complete copies an additional decrease in working capital of approximately $246,462 from December 31, 2010, to March 10, 2011, Lender shall have received evidence satisfactory to it that no change in the Constituent Documents business, assets, management, operations, condition (financial or otherwise) or prospects of Borrower shall have occurred since December 31, 2009, which change has had or could reasonably be expected to have a Material Adverse Effect, and Lender shall have received a certificate of a Responsible Officer so stating; (c) Lender shall have received evidence satisfactory to it that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal, cancellation or waiting period, and that no Default exists, after giving effect to the Borrowerinitial Advance hereunder, and Lender shall have received a certificate of a Responsible Officer so stating; (d) Lender shall have received confirmation that the Equityholder original Uniform Commercial Code financing statements naming Borrower as debtor and naming Lender as secured party have been duly filed in all appropriate jurisdictions; (e) Lender shall have received evidence satisfactory to it that, concurrent with the Servicer as Closing Date, Borrower has received a minimum of $400,000 in effect Net Cash Proceeds from the issuance of Shareholder Loans; (f) Lender shall have received evidence satisfactory to it that no Advances will be made on the Closing Date; (cg) Lender shall have received a true, complete and correct copy of each material contract of Borrower, and Lender shall have received a certificate of a Responsible Officer of the Borrower certifying with respect thereto; (h) Lender shall have received (i) as to its Constituent Documentscurrent financial statements, including company prepared statements for the fiscal year of Borrower ended December 31, 2009, company prepared balance sheets, income statements, and statements of cash flow for the fiscal quarters ending March 31, 2010, June 30, 2010, September 30, 2010, and December 31, 2010 and the fiscal month ending January 31, 2011, (ii) current Accounts and Inventory reports, (iii) sales pipeline report and (iv) all other updated financial information as to its resolutions or other action of its designated manager approving Lender may request; (i) a certificate executed by Borrower certifying that (i) the representations and warranties contained this Agreement and the other Facility Loan Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of (unless any such earlier date), (iv) that no Default representation or Event of Default has occurred and warranty is continuing, and (v) qualified as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier datemateriality, in which case such representations representation and warranties warranty shall be true and correct in all material respects as of such earlier date), respects) on and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying (ii) no Default shall have occurred and be continuing, or would exist after giving effect to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through transactions contemplated herein and (iii) below, immediately prior there has been no material adverse change to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted LiensBorrower’s business plan; (iij) all business, legal and other due diligence requested by Lender, and the Borrower has not assignedresults of the examination of such due diligence by Lender and its counsel, pledged or otherwise encumbered any interest shall be in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant form and substance satisfactory to this AgreementLender; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (nk) such other opinionsdocuments or certificates, instrumentsand completion of such other matters, certificates and documents from the Borrower as the Agents Lender may reasonably deem necessary or any Lender shall have reasonably requestedappropriate.

Appears in 1 contract

Samples: Loan Agreement (Vystar Corp)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be subject On or prior to the Closing Date, each of the following conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agentbeen satisfied: (a) each The Bank shall have received from Borrower (i) a copy, certified by a duly authorized officer of the Facility Documents (other than the Collateral Agent Fee Letter which shall Borrower to be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies on and as of the Constituent Documents Closing Date, of the Borrower's Articles of Incorporation, the Equityholder and the Servicer by-laws or code of regulations as in effect on the Closing Date (together with any an all amendments thereto); (ii) the charter or other organizational documents of Borrower, certified by the Ohio Secretary of State; and (iii) a Certificate of Good Standing for Borrower, each issued by the Ohio Secretary of State not more than thirty (30) days before the Closing Date;. (cb) The Bank shall have received from Borrower copies, certified by a certificate duly authorized officer of a Responsible Officer Borrower to be true and complete on and as of the Closing Date, of records of all corporate action taken by Borrower certifying to authorize (i) as to its Constituent Documents, (ii) as to its resolutions or other action the execution and delivery of its designated manager approving this Agreement and the other Facility Loan Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses its performance of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date)all of its obligations under each of such documents; and (iii) all other reasonable and documented up-front expenses and fees the making by Borrower of the borrowings contemplated hereby. (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letterc) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, The Bank shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrowerfrom Borrower an incumbency certificate, dated as of the Closing Date, certifying signed by a duly authorized officer and giving the name and bearing a specimen signature of each individual who shall be authorized (i) to the effect thatsign, in the case name and on behalf of Borrower, each item of Collateral pledged the Loan Documents to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior which Borrower is or is to the delivery thereof become a party on the Closing Date; and (ii) to give notices and to take other action on behalf of Borrower under the Loan Documents. (d) Borrower shall have executed and delivered to the Bank the Note, the Assignments, the Environmental Indemnity Agreement, the Mortgages, Uniform Commercial Code Financing Statements (the "Financing Statements") such additional documents, instruments and agreements as the Bank may reasonably require to evidence or to secure the Loan or as may be necessary or reasonable or reasonably appropriate to enable the Title Company Title Policies as required by this Agreement. (e) Borrower shall have: (i) Filed the Borrower is respective Mortgages for record in the owner real property records of such Collateral free and clear of any Liens except for those the counties in which the respective Mortgaged Properties are being released on the Closing Date or Permitted Lienslocated; (ii) Filed the Borrower has not assigned, pledged or otherwise encumbered any interest Financing Statements for record in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; andthe appropriate public records of each county in which a Mortgaged Property is located and in the Uniform Commercial Code indices maintained by the Ohio Secretary of State; (iii) Furnished a Title Policy insuring that each Mortgage is the first and paramount lien upon grant the Mortgaged Property encumbered thereby; (iv) Furnished to the Bank a survey with respect to each Mortgaged Property showing such matters as may be required by the BorrowerBank, which survey shall be: (x) acceptable in form and content to the Agent; (y) certified to the Bank and the Title Company; and (z) shall have been prepared by a registered surveyor acceptable to the Agent in accordance with the minimum standard detail requirements for ALTA/ACSM Title Surveys, so as to eliminate any and all "survey exceptions" from the Title Insurance Policy with respect to the Mortgaged Property, and containing (A) a note as to the zoning classification of the subject property; and (B) if applicable, the Collateral Agent has a first priority perfected security interest in Flood Map panel number, suffix, map date and zone for the Collateral, except Permitted Liens or as permitted by this Agreementsubject Mortgaged Property; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Loan Agreement (Associated Estates Realty Corp)

Conditions Precedent to Initial Advance. The obligation of each Lender SAFECO to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent SAFECO shall have received on or before the Closing Date date of that Advance all of the following, each in form and substance reasonably satisfactory to the Administrative AgentSAFECO: (aA) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectThe Note; (bB) true Guaranties, duly executed by Oak Wood Insurance Company, Ltd. and complete copies California Landscape Contractors Association Welfare Insurance Trust Fund (the "Guarantors"), in substantially the form of Exhibit D (the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date"Guaranties); (cC) a certificate Pledge Agreement, duly executed by Oak Wood Insurance Company, Ltd. and California Landscape Contractors Association Welfare Insurance Trust Fund ("Xxxxxxx"), substantially in the form of a Responsible Officer Exhibit E (the "Pledge Agreement"); (D) Acknowledgment copies of proper Financing Statements (Form UCC-1) duly filed under the Borrower certifying (i) Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of SAFECO, desirable to its Constituent Documents, (ii) as to its resolutions or other action perfect the security interests created by Article III of its designated manager approving this Agreement and the Pledge Agreement, together with evidence that all other Facility Documents actions necessary or desirable in SAFECO's opinion to perfect and protect such security interests have been taken; (E) Certified copies of Requests for Information or Copies (Form UCC- I 1), or equivalent reports, listing the Financing Statements referred to in paragraph (D) above and all other effective financing statements that name Borrower (under its present name and any previous name) as debtor and which are filed in the jurisdictions referred to in paragraph (D), together with copies of such other financing statements (none of which shall cover the collateral purported to be covered by Article III of this Agreement or the Pledge Agreement); (F) Certified copies of the resolutions of the Board of Directors of each corporate Loan Party approving each Loan Document to which it is a party and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to each Loan Document; (G) A certificate of the Secretary or an Assistant Secretary of each corporate Loan Party certifying the names and specimen signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents other documents to which be delivered by it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyhereunder; (dH) [Reserved]Certificates representing all of the issued and outstanding shares of stock of Borrower pledged to SAFECO pursuant to the Pledge Agreement, together with undated stock powers for such certificates executed in blank; (eI) [Reserved]Current financial statements of Borrower, the Agency, and the, principals of Borrower and/or the Agency (as specified by SAFECO), including tax returns for the three most recent years; (fJ) a certificate A copy of a Responsible Officer of the Servicer certifying, respectively, (i) as an executed Services Agreement between Borrower and AIS on terms and conditions reasonably acceptable to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this AgreementSAFECO; and (iiiK) upon grant by the BorrowerSuch other approvals, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instrumentsfinancial statements, certificates and references, or other documents from the Borrower as the Agents or any Lender shall have reasonably requestedSAFECO may request.

Appears in 1 contract

Samples: Credit and Security Agreement (Birch Financail Inc)

Conditions Precedent to Initial Advance. The obligation willingness of each Lender the Bank to make its consider making the Advances under Article II (including the initial Advance hereunder shall be Advance) is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date day of such Advance all of the following, each dated (unless otherwise indicated) such day, in form and substance reasonably satisfactory to the Administrative AgentBank: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) The Note duly executed and delivered by the parties thereto, which shall each be in full force and effect;executed. (b) true and complete copies A certified copy of the Constituent Documents resolutions of the BorrowerBorrower authorizing the execution, delivery and performance of this Agreement, the Equityholder Note, Collateral Documents and the Servicer as in effect on the Closing Date;other matters contemplated hereby. (c) a certificate Copies of a Responsible Officer the articles of incorporation and bylaws of the Borrower certifying certified by its secretary as being true and correct. (id) Evidence that the Borrower is in good standing with the office of the Delaware Secretary of State, North Dakota Secretary of State, Minnesota Secretary of State, South Dakota Secretary of State, Nebraska Secretary of State and Iowa Secretary of State. (e) Intercreditor agreements executed by Case LLC, Case Credit Corporation, New Holland Credit Company, LLC, New Holland North America, Inc., GE Commercial Distribution Finance Corporation and such other third party creditors of the Borrower as the Bank deems necessary, in form and content satisfactory to its Constituent Documentsthe Bank. (f) A security agreement duly executed and related financing statement, (ii) as together with any such other documentation required by the Bank, whereby to its resolutions secure the Obligations of the Borrower to the Bank, the Borrower grants the Bank a perfected security interest in all of the Borrower’s inventory, equipment, fixtures, contract rights, accounts and other rights to payment, deposit accounts and general intangibles whether now owned or other action of its designated manager approving this Agreement hereafter acquired and wherever located and the other Facility Documents to which it is a party products and the transactions contemplated hereby and thereby, (iii) that its representations and warranties proceeds thereof all as more specifically set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;security agreement. (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction Evidence that the Administrative Agent deems necessary or desirable security interest granted by the security agreement referred to in order (f) above is subject only to perfect the interests in the Collateral prior liens, if any, contemplated by this Agreement;the intercreditor agreements referred to in (e) above and the purchase money liens contemplated by Section 6.2 (f). (h) copies A certificate of proper financing statement amendments (insurance evidencing a policy or policies of insurance covering the equivalent thereof in any applicable foreign jurisdictionBorrower’s operations and property as required by Section 5.7 of this Agreement, such policy to insure against all risks and names the Bank as applicable), if any, necessary mortgagee/lender loss payee on all property policies which insures the property of the Borrower subject to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;Documents. (i) legal opinions (A signed copy of an opinion of counsel for the Borrower addressed to each of the Secured Parties) of counsel Bank and its participants in form and substance acceptable to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;Bank. (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;A completed Borrowing Base Certificate. (k) evidence that (i) Copies of all fees leases of real property under which the Borrower is a tenant, together with a Landlord’s Disclaimer and expenses due Consent in favor of the Bank, in form and payable to each Lender on or prior content acceptable to the Closing Date have been received or will be received contemporaneously with Bank, from the Closing Date; (ii) the reasonable and documented fees and expenses landlord of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees each such lease properly executed on behalf of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;such landlord. (l) delivery of such Collateral (including any promissory noteAny and all other agreements, executed assignment agreements documents, instruments and Word powers as the Bank may require or pdf copies deem necessary, in its sole discretion, to carry into effect the purposes of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) documents described in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free this Section 3.1 and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Loan Agreement (Titan Machinery Inc.)

Conditions Precedent to Initial Advance. The obligation of each Lender Bank’s agreement to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to Bank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation, subject to the Administrative Agentcondition precedent that Bank shall have received, in form and substance satisfactory to Bank, the following: (a) each a certificate of the Facility Documents (other than Secretary of each Borrower with respect to articles, bylaws, incumbency and resolutions authorizing the Collateral Agent Fee Letter which shall be delivered directly execution and delivery of this Agreement in form and substance substantially similar to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectthat attached hereto as Exhibit D; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date[ intentionally omitted ]; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partysubordination agreements/intercreditor agreements by certain Persons; (d) [Reserved]completed Disclosure Schedule; (e) [Reserved[ intentionally omitted ]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party[ intentionally omitted ]; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Account Control Agreement/ Investment Account Control Agreement; (hhi) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorinsurance certificates; (i) legal opinions (addressed to each payment of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent fees and the Custodian, covering such matters as the Administrative Agent Bank Expenses then due and its counsel shall reasonably requestpayable; (j) evidence reasonably satisfactory to it that all Certificate of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effectForeign Qualification (if applicable); (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses Certificate of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the BorrowerGood Standing/Legal Existence; (l) delivery of such Collateral (including any promissory note, executed assignment agreements the Facility Fee and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;Warrant Waiver Fee; and (m) a certificate of a Responsible Officer of the Borrower, dated Joint and Several Borrower Rider for each Borrower in form and substance substantially similar to that attached hereto as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; andExhibit C. (n) such other opinionsdocuments, instrumentsand completion of such other matters, certificates and documents from the Borrower as the Agents Bank may reasonably deem necessary or any Lender shall have reasonably requestedappropriate.

Appears in 1 contract

Samples: Loan and Security Agreement (Intersearch Group Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed signature pages to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLoan Documents; (b) true Each Real Goods Borrower’s Operating Documents and complete copies good standing certificates of each Borrower certified by the Constituent Documents Secretary of State of each State in which Borrower is organized or incorporated, together with a certificate of foreign qualification from the Borrowerapplicable authority in each jurisdiction in which Borrower is so qualified, in each case dated as of a date no earlier than thirty (30) days prior to the Equityholder and the Servicer as in effect on the Closing Effective Date; (c) duly executed signature pages to the Secretary’s Certificate with completed Borrowing Resolutions for each Borrower; (d) the Subordination Agreement by Gaiam, Inc. in favor of Bank, together with the duly executed signature pages thereto; (e) the Subordination Agreement by Riverside Partners, LLC in favor of Bank, together with the duly executed signature pages thereto; (f) evidence satisfactory to Bank that each of the Prior Lenders has been paid in full; (g) the Liens securing Indebtedness owed by Borrower to Prior Lenders, as applicable, will be terminated and (ii) the documents and/or filings evidencing the perfection of such Liens, including without limitation any financing statements and/or control agreements, have or will, concurrently with the initial Advance, be terminated; (h) certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released; (i) the Perfection Certificates of each Real Goods Borrower and Secured Guarantor, together with the duly executed signature pages thereto; (j) a legal opinion of Borrower’s counsel, with regard to formation and authorization of the Loan Documents with regard to each Real Goods Borrower, in form and substance acceptable to Bank, in its reasonable discretion, dated as of the Effective Date together with the duly executed original signature pages thereto; (k) duly executed original signature pages to the Guaranty; (l) duly executed original signature pages to the Security Agreement; (m) duly executed signature pages to the Secretary’s Certificate with completed Guaranty Resolutions for Secured Guarantor; (n) the Pledge Agreement, together with the duly executed signature pages thereto and any certificates and stock powers required to be delivered in connection therewith; (o) duly executed signature pages to a certificate of a Responsible Officer of the Borrower certifying (i) as that the executed merger documents and post-closing organizational chart provided to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party Administrative Agent are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partycomplete copies; (dp) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as evidence satisfactory to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction Bank that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated insurance policies required by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.7 hereof are in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses and cancellation notice to Bank (or endorsements reflecting the same) in favor of Bank; (kq) evidence that (i) all payment of the fees and expenses Bank Expenses then due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, as specified in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Real Goods Solar, Inc.)

Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Commitments and to make the initial Advances hereunder, and the obligation of each Lender the Issuing Bank to make its issue any initial Advance hereunder shall be Letter of Credit hereunder, are subject to the conditions precedent that prior fulfillment of each of the following conditions: The Administrative Agent shall have received on or before the Closing Date each of the following, each in form and substance reasonably satisfactory to the Lender Group: This Agreement duly executed by the Borrowers, the Guarantors, the Lenders, and the Administrative Agent: ; Any Revolving Loan Notes requested in writing by any Lender at least three (a3) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly Business Days prior to the Collateral Agent) Agreement Date duly executed and delivered by the parties Borrowers; The Security Agreement, the Canadian Security Agreement, and the Reaffirmation Agreement, each duly executed by each Credit Party party thereto; An Information and Collateral Disclosure Certificate with respect to the Credit Parties duly executed by such Credit Party; The legal opinions of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Credit Parties (opining on New York, Delaware, California, Washington, Oregon and federal law), and local counsel for Georgia and Wisconsin, in each case addressed to the Lender Group, which opinions shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and cover the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility other Loan Documents and include, among other things, opinions as to which it is a party are true corporate or limited liability company power and correct in all authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material respects as debt agreements (including without limitation the Indenture with respect to the 2017 Notes and the 2020 Notes and the New Indenture with respect to the 2021 Notes), and orders and decrees; no liens triggered by execution and delivery of the Closing Date (except to Loan Documents; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests; The duly executed Request for Advance for the extent such representations and warranties expressly relate to any earlier dateinitial Advance of the Loans, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature with disbursement instructions attached thereto; A loan certificate signed by an Authorized Signatory of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include, without limitation, the following: (A) a Responsible Officer copy of the Servicer certifyingcertificate of incorporation or formation, respectivelyarticles of organization, (i) as or similar organizational document of such Person certified to its Constituent Documentsbe true, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true complete and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with by the Secretary of State of the State of Delaware such Person’s incorporation or formation, (B) a true, complete and any other applicable filing office in any applicable jurisdiction that correct copy of the Administrative Agent deems necessary bylaws, operating agreement, partnership agreement, limited liability company agreement, or desirable in order to perfect similar organizational document of such Person, (C) a true, complete and correct copy of the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments board resolutions (or equivalent) of such Person authorizing the equivalent thereof in any applicable foreign jurisdictionexecution, as applicable), if any, necessary to release all security interests delivery and other rights of any performance by such Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel Loan Documents and the Bank Products Documents and, with respect to the BorrowerBorrowers, authorizing the Equityholderborrowings hereunder, and (D) certificates of good standing, existence, or similar appellation from each jurisdiction in which such Person is organized; provided, that if a document referenced in clause (A) or (B) was delivered in connection with the ServicerExisting Credit Agreement, the Collateral Agent and the Custodian, covering then delivery of such matters document shall not be required so long as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it applicable Credit Party certifies that all of the Covered Accounts shall no changes have been establishedmade to such document, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be such document remains in full force and effect; ; A solvency certificate executed by the chief financial officer of the Parent regarding the solvency and financial condition of the Credit Parties; Certificates of insurance, with respect to the Credit Parties (k) other than IMS Southern, LLC), in each case, meeting the requirements of Section 6.5; UCC, PPSA, Lien, and Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent that there are not Liens upon the Collateral (i) other than Permitted Liens); Payment of all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the Closing Date; (ii) the reasonable execution and documented delivery of this Agreement, including, without limitation, fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees A certificate signed by an Authorized Signatory of outside counsel and any fees required under the Collateral Agent Fee Letter) Borrowers certifying that are, each of the applicable conditions set forth in the case of clauses (iiSections 4.2(a) and (iii), invoiced at least one Business Day prior to the Closing Date, shall d) have been paid by satisfied. The Administrative Agent and the Borrower; (l) delivery Lenders agree that the Revolving Loan Commitment of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies each of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, Lenders immediately prior to the delivery thereof effectiveness of this Agreement shall be reallocated among the Lenders such that, immediately after the effectiveness of this Agreement in accordance with its terms, the Revolving Loan Commitment of each Lender shall be as set forth on Schedule 1.1(a). In order to effect such reallocations, assignments shall be deemed to be made among the Lenders in such amounts as may be necessary, and with the same force and effect as if such assignments were evidenced by the applicable Assignment and Acceptance (but without the payment of any related assignment fee), and no other documents or instruments shall be required to be executed in connection with such assignments (all of which such requirements are hereby waived). Further, to effect the foregoing, each Lender agrees to make cash settlements in respect of any outstanding Revolving Loans, either directly or through the Administrative Agent, as the Administrative Agent may direct or approve, such that after NAI-1536628076v4 giving effect to this Agreement, each Lender holds Revolving Loans equal to its Aggregate Commitment Ratio (based on the Closing Date: Revolving Loan Commitment of each Lender as set forth on Schedule 1.1(a)). To the extent the reallocation permitted pursuant to this Section 4.1(b) results in the prepayment of any SOFR Advance in whole or in part, the Lenders hereby agree to waive any reimbursement obligations of the Borrowers arising under Section 2.9 in connection therewith. The Administrative Agent shall have received a certificate of an Authorized Signatory of the Borrower Representative stating that no change in the business, condition (financial or otherwise), results of operations, liabilities (contingent or otherwise), or properties of the Parent and its Restricted Subsidiaries (taken as a whole) shall have occurred since September 25, 2021, which change has had or would be reasonably expected to have a Materially Adverse Effect. The Administrative Agent shall have received (i) the Borrower is the owner financial statements (including balance sheets and related statements of such Collateral free comprehensive income, equity and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; cash flows) described in Section 5.1(k) and (ii) an annual budget for the Borrower has Credit Parties and their Subsidiaries, including forecasts of the income statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending September 2026, prepared on a quarterly basis from the Agreement Date through September 24, 2022, and prepared on an annual basis for each fiscal year thereafter (it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not assignedbe viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results and such differences may be material). The Administrative Agent shall have received a certificate signed by an Authorized Signatory of the Borrowers certifying that all Necessary Authorizations described in clause (a) of the definition thereof are in full force and effect, pledged are not subject to any pending or otherwise encumbered threatened reversal or cancellation, and all applicable waiting periods have expired, and that there is no ongoing investigation or inquiry by any interest Governmental Authority regarding the Loans or any other transaction contemplated by the Loan Documents. At least five (5) days prior to the date of this Agreement, the Administrative Agent shall have received all documentation and information required by any Governmental Authority and requested in such Collateral writing by any Lender at least ten (or10) days prior to the Agreement Date under any applicable “know your customer” and Anti-Money Laundering Laws including the Patriot Act and, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such interest has been assignedBorrower. The Administrative Agent shall have received all documentation and authorizations necessary to release all Mortgages granted to the Administrative Agent under the Existing Credit Agreement, pledged and all such Mortgages shall have been, or otherwise encumberedshall substantially concurrent with the consummation hereof be, it has been released) other than Permitted Liens terminated (with record filings to be submitted for filing or interests granted pursuant to this Agreement; and (iii) upon grant recordation by the Borrower, Administrative Agent promptly after the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedAgreement Date).

Appears in 1 contract

Samples: Credit Agreement (Central Garden & Pet Co)

Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Commitments and to fund the Tranche A Loan and the Tranche B Loan, and to make the initial Advance of the Revolving Loans hereunder and the obligation of each Lender the Issuing Banks to make its issue the initial Advance hereunder shall be Letter of Credit hereunder, are subject to the conditions precedent that prior fulfillment of each of the following conditions: (a) The Administrative Agent or the Lenders, as appropriate, shall have received on or before the Closing Date each of the following, each in form and substance reasonably satisfactory to the Administrative Agent and the Lenders: (i) This duly executed Agreement; (ii) A duly executed Tranche A Loan Note to the order of each Lender in the amount of such Lender's pro rata share of the Tranche A Loan Commitment, and a duly executed Tranche B Loan Note to the order of each Lender in the amount of such Lender's pro rata share of the Tranche B Loan Commitment; (iii) A duly executed Revolving Loan Note to the order of each Lender in the amount of such Lender's pro rata share of the Revolving Loan Commitment; (iv) The duly executed Swing Loan Note to the order of the Swing Bank; (v) The Security Agreement duly executed by each of the Borrowers; (vi) The Trademark Security Agreement duly executed by each of the Borrowers and each of the Subsidiaries of the Borrowers (other than iHigx.xxx,Xxx.) which own trademarks; (vii) The Pledge Agreements duly executed by the pledgors party thereto, together with original stock certificates, warrants, limited liability company interest certificates or limited partnership interest certificates and appropriate transfer powers executed in blank with respect to all collateral pledged thereunder; (viii) The Subsidiary Security Agreement duly executed by all direct and indirect Subsidiaries of the Borrowers (other than foreign Subsidiaries and iHigx.xxx, Xxc.); (ix) The Subsidiary Guaranty duly executed by all direct and indirect Subsidiaries of the Borrowers (other than foreign Subsidiaries and iHigx.xxx, Xxc.); (x) The Robixxxx Xxxranty duly executed by Robixxxx; (xi) A duly executed assignment of Wachovia Bank, N.A.'s existing mortgage on certain real property owned by Datasouth; (xii) A cash collateral account pledge agreement duly executed by W. Jxxxx Xxxt with respect to a pledge of $3,000,000 in cash compensation to be received by W. Jxxxx Xxxt in connection with the Mergers; (xiii) The legal opinions of Alstxx & Xird LLP, counsel to the Parent, Bull Run, Capital and Datasouth, Dinsxxxx & Xhohl LLP, counsel to Host, and Davix, Xxodxxx & Xadoxx, xxunsel to USA, each with respect to this Agreement in form and substance satisfactory to the Administrative Agent: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (bxiv) The duly executed Request for Advance for the initial Advance of the Loans; (xv) A duly executed Borrowing Base Certificate dated as of November 30, 1999; (xvi) A loan certificate as to each Borrower signed by an Authorized Signatory of such Borrower in substantially the form of Exhibit S attached hereto, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Certificate or Articles of Incorporation of such Borrower certified to be true, complete and correct by the Secretary of State for the jurisdiction of such Borrower's incorporation, (B) a true, complete and correct copy of the By-Laws of such Borrower, (C) a true, complete and correct copy of the resolutions of such Borrower authorizing the borrowing hereunder and the execution, delivery and performance by such Borrower of the Loan Documents, (D) certificates of good standing from each jurisdiction in which such Borrower is qualified to do business, (E) true, correct and complete copies of any employment agreements of such Borrower, (F) true, correct and complete copies of any shareholder or voting trust agreements with respect to such Borrower and (G) a true and complete copy of resolutions adopted by the Board of Directors of such Borrower authorizing the consummation of the Mergers and all transactions related thereto; (xvii) A loan certificate of the Parent signed by an Authorized Signatory of the Parent in substantially the form of Exhibit U attached hereto, including a certificate of incumbency with respect to each Authorized Signatory of the Parent, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Articles of 48 55 Incorporation of the Parent certified to be true, complete and correct by the Secretary of State of Georgia, (B) a true, complete and correct copy of the By-Laws of the Parent, (C) a true, complete and correct copy of the resolutions of the Parent authorizing the execution, delivery and performance by the Parent of the Loan Documents, (D) certificates of good standing from each jurisdiction in which the Parent is qualified to do business, (E) a true and complete copy of resolutions adopted by the Board of Directors of the Parent authorizing the consummation of the Mergers and all transactions related thereto, and (F) true, correct and complete copies of the Constituent Documents executed Merger Documents; (xviii) A Solvency Certificate of the BorrowerParent a consolidated basis with its Subsidiaries executed by the Chief Financial Officer of Bull Run, regarding the Equityholder solvency and financial condition of the Parent and its Subsidiaries and the Servicer accuracy of all internally prepared financial statements and business plans, in form and substance satisfactory to the Administrative Agent; (xix) A certificate of an Authorized Signatory of Host certifying that attached thereto is a true and complete copy of the NCAA Contract; (xx) Audited consolidated financial statements for (A) Bull Run for the six months ending June 30, 1999, (B) Host for the fiscal year ending June 30, 1999 and (C) USA for the fiscal year ending June 30, 1999 and unaudited consolidated financial statements for the Parent, Bull Run, Host and USA for the three (3) months ended September 30, 1999; (xxi) A statement of Robixxxx'x Xxxestricted Investments (as defined in effect on the Closing Robixxxx Xxxranty) as of the Agreement Date, with values thereon determined as of the Business Day immediately preceding the Agreement Date; (cxxii) a certificate Copies of a Responsible Officer certificates of insurance and the related insurance policies with respect to the Borrowers and meeting the requirements of Section 5.5 hereof; (xxiii) Copies of any pay-off letters, termination statements, mortgage releases, trademark releases and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower certifying Borrowers after giving effect to the refinancing of any existing Indebtedness; (xxiv) Lien search results with respect to the Borrowers, the Parent and any of their Subsidiaries from all appropriate jurisdictions and filing offices; (xxv) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents executed on the Agreement Date will be first priority perfected Liens on the Collateral (subject only to Permitted Liens); (xxvi) Since June 30, 1999, (i) as to its Constituent Documentsno change in the business, assets, management, operations, financial condition, projections, or prospects of the Borrowers or any of their Subsidiaries or Affiliates, or in the Collateral, shall have occurred, which change, in the judgment of the Administrative Agent and the Lenders, may have a Materially Adverse Effect, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts there shall have been establishedno material increase in the liabilities (absolute or contingent) of the Borrowers or any of their Subsidiaries or Affiliates, and the Account Control Agreement shall have been executed and delivered by the Borrowerwhether or not disclosed or required to be reserved against on any pro forma balance sheet, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, there shall have been paid by no material decrease in the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies assets of the principal credit agreement for each initial Collateral LoanBorrowers or their Subsidiaries or Affiliates, to the extent received by the Borrower) in accordance with the Custodian Agreement nor shall have been effected; (m) a certificate any of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.the

Appears in 1 contract

Samples: Credit Agreement (Bull Run Corp)

Conditions Precedent to Initial Advance. The Each Lender’s obligation of each Lender to make its initial Advance hereunder shall be a Term A Loan is subject to the conditions condition precedent that the Administrative Collateral Agent shall consent to or shall have received on received, in form and substance satisfactory to Collateral Agent, such documents, and completion of such other matters, as Collateral Agent may reasonably deem necessary or before appropriate, including, without limitation: (a) duly executed original signatures to the Closing Date the followingLoan Documents to which Borrower is a party, each in all cases in form and substance reasonably satisfactory acceptable to the Administrative Agent: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLender; (b) true certified copy of resolutions of Borrower’s board of directors evidencing approval of (i) the Term Loans and complete copies other transactions evidenced by the Loan Documents; and (ii) the Warrant and transactions evidenced thereby with a Corporate Borrowing Certificate substantially in the form of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing DateExhibit E; (c) a certificate of a Responsible Officer of the duly executed original signatures to Control Agreements with each domestic financial institution with which Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partymaintains bank and/or securities accounts; (d) [Reserved]; (e) [Reserved]; (f) a certificate the Operating Documents of a Responsible Officer Borrower and good standing certificates of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State of Delaware and each state in which Borrower is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Effective Date; (e) the Perfection Certificate for Borrower and each Subsidiary of Borrower; (f) duly executed original signatures to an officer’s certificate for Borrower, in a form acceptable to Collateral Agent; (g) Collateral Agent shall have received certified copies, dated as of a recent date, of such financing statement searches, as Collateral Agent shall request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Advance, will be terminated or desirable in order to perfect the interests in the Collateral contemplated by this Agreementreleased; (h) copies a landlord’s consent executed in favor of proper financing statement amendments (or the equivalent thereof Collateral Agent in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights respect of any Person in the Collateral previously granted by the each of Borrower, the Equityholder or any transferor’s leased locations; (i) legal opinions (addressed to each a copy of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent any applicable Registration Rights Agreement or Investors’ Rights Agreement and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestany amendments thereto; (j) evidence reasonably satisfactory to it that all a legal opinion of Borrower’s counsel dated as of the Covered Accounts shall have been established, and Effective Date together with the Account Control Agreement shall have been duly executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effectoriginal signatures thereto; (k) a payoff letter from Oxford in respect of the Existing Indebtedness; (l) evidence that (i) all fees and expenses due and payable the Liens securing Indebtedness owed by Borrower to each Lender on or prior to the Closing Date have been received or Oxford will be received contemporaneously with the Closing Date; terminated and (ii) the reasonable and documented fees and expenses documents and/or filings evidencing the perfection of Cadwaladersuch Liens, Xxxxxxxxxx & Xxxx LLPincluding without limitation any financing statements and/or control agreements, counsel to the Administrative Agenthave or will, in connection concurrently with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that areinitial Advance, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effectedbe terminated; (m) a certificate evidence satisfactory to Collateral Agent that the insurance policies required by Section 6.5 hereof are in full force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on for the Closing Date and, in ratable benefit of the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this AgreementLenders; and (n) such other opinions, instruments, certificates payment of the fees and documents from the Borrower Lenders’ Expenses then due as the Agents or any Lender shall have reasonably requestedspecified in Section 2.5 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Anacor Pharmaceuticals, Inc.)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Borrower shall consent to or have received on or before the Closing Date the followingdelivered, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (db) [Reserved]duly executed original signatures to the Control Agreements; (ec) [Reserved]; (f) its Operating Documents and a good standing certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Borrower certified by the Secretary of State of the State of Delaware and as of a date no earlier than thirty (30) days prior to the Effective Date; (d) duly executed original signatures to the completed Borrowing Resolutions for Borrower; (e) certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any other applicable filing office UCC termination statements) that the Liens indicated in any applicable jurisdiction that such financing statements either constitute Permitted Liens or have been or, in connection with the Administrative Agent deems necessary initial Advance, will be terminated or desirable released; (f) the Perfection Certificate(s) executed by Borrower; (g) landlords’ consents for Borrower’s locations at 0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 and 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxx XX 55121 executed by its landlords in order to perfect the interests in the Collateral contemplated by this Agreementfavor of Bank; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered insurance policies required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.5 hereof are in full force and effect; (k) , together with appropriate evidence that (i) all fees and expenses due and showing loss payable to each Lender on and/or additional insured clauses or prior to the Closing Date have been received or will be received contemporaneously with the Closing Dateendorsements in favor of Bank; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) payment of the Borrower is the owner of such Collateral free fees and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest Bank Expenses then due as specified in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.5 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Sonic Innovations Inc)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLoan Documents; (b) true and complete copies of duly executed original signatures to the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing DateControl Agreements; (c) a certificate the Operating Documents and long-form good standing certificates of Borrower and its Subsidiaries certified by the Secretary of State (or equivalent agency) of Borrower’s and such Subsidiaries’ jurisdiction of organization or formation and each jurisdiction in which Borrower and each Subsidiary is qualified to conduct business, each as of a Responsible Officer of the Borrower certifying date no earlier than thirty (i30) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except days prior to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyEffective Date; (d) [Reserved]duly executed original signatures to the completed Borrowing Resolutions for Borrower; (e) [Reserved]certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released; (f) a certificate the Perfection Certificate(s) of a Responsible Officer of Borrower together with the Servicer certifying, respectively, (iduly executed original signature(s) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partythereto; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction evidence that the Administrative Agent deems necessary or desirable existing Liens against Borrower in order to perfect the interests in the Collateral contemplated by this Agreementfavor of Bridge Bank, N.A. have been terminated; (h) copies a landlord’s consent in favor of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdictionBank for 00 Xx Xxxxxxx Xx., as applicable)Xxxxx 000, if anyXxxxxxx, necessary to release all security interests and other rights of any Person in the Collateral previously granted Xxx Xxxx by the Borrowerlandlord thereof, together with the Equityholder or any transferorduly executed original signatures thereto; (i) a legal opinions (addressed to each opinion of Borrower’s counsel dated as of the Secured Parties) of counsel to Effective Date together with the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestduly executed original signature thereto; (j) evidence reasonably satisfactory to it Bank that all of the Covered Accounts shall have been established, insurance policies and the Account Control Agreement shall have been executed and delivered endorsements required by the Borrower, the Collateral Agent and the Custodian and shall be Section 6.5 hereof are in full force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of Bank; (k) evidence that (i) all fees the completion of the Initial Audit with results satisfactory to Bank in its sole and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Dateabsolute discretion; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;and (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies payment of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) fees and Bank Expenses then due as specified in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedSection 2.4 hereof.

Appears in 1 contract

Samples: Loan and Security Agreement (Synacor, Inc.)

Conditions Precedent to Initial Advance. The Bank’s obligation of each Lender to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly duly executed original signatures to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effectLoan Documents; (b) true duly executed original signatures to the Control Agreements with Bankers Trust and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing DateXxxxxx Xxxxxxx; (c) a certificate the Operating Documents and long-form good standing certificates of Borrower certified by the Secretary of State (or equivalent agency) of Borrower’s and of each U.S. Subsidiaries’ jurisdiction of organization or formation and each jurisdiction in which Borrower and each Subsidiary is qualified to conduct business, each as of a Responsible Officer of the Borrower certifying date no earlier than thirty (i30) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except days prior to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyEffective Date; (d) [Reserved]duly executed original signatures to the completed Borrowing Resolutions for Borrower; (e) [Reserved]the Subordination Agreement by Bluestem Capital in favor of Bank, together with the duly executed original signatures thereto; (f) a certificate certified copies, dated as of a Responsible Officer recent date, of the Servicer certifyingfinancing statement searches, respectivelyas Bank may request, accompanied by written evidence (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iiiincluding any UCC termination statements) that its representations and warranties set forth the Liens indicated in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent any such representations and warranties expressly relate to any earlier datefinancing statements either constitute Permitted Liens or have been or, in which case such representations and warranties shall connection with the initial Credit Extension, will be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyterminated or released; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdictionPerfection Certificate of Borrower, as applicable) in proper form for filing on the Closing Date, under the UCC together with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreementduly executed original signature thereto; (h) copies a landlord’s consent in favor of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdictionBank for 0000 Xxxxxxxxxx Xxxxxxxxx, as applicable)Xxxx, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted Xxxx 00000 by the Borrowerlandlord thereof, together with the Equityholder or any transferorduly executed original signatures thereto; (i) legal opinions (addressed to a bailee’s waiver in favor of Bank for each of location where Borrower maintains property with a third party, by each such third party, together with the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestduly executed original signatures thereto; (j) evidence reasonably satisfactory to it that all a legal opinion of Borrower’s counsel dated as of the Covered Accounts shall have been established, and Effective Date together with the Account Control Agreement shall have been duly executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;original signature thereto; and (k) evidence that (i) all payment of the fees and expenses Bank Expenses then due and payable to each Lender as specified in Section 2.5 hereof. 3.1.1 Credit Extensions on or prior to the Closing Effective Date. Bank will make Credit Extensions on the Effective Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case form of clauses two (ii2) and (iii), invoiced at least one Business Day prior Letters of Credit subject to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance ’s compliance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) Section 3.1 other than Permitted Liens or interests granted pursuant to this Agreement; and clause (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.b)

Appears in 1 contract

Samples: Loan and Security Agreement (Workiva LLC)

Conditions Precedent to Initial Advance. The obligation of each Lender to make its initial Advance hereunder shall be pursuant to this Agreement is subject to the conditions condition precedent that the Administrative Agent shall have received received, on or before the Closing Date date of such initial Advance, the following, following each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Administrative Agent: (a) each of The Sale Agreement and the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) Purchase and Sale Agreement, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies A certificate of the Constituent Documents Secretary or Assistant Secretary or other appropriate officer of each Loan Party certifying the names and true signatures of the Borrower, the Equityholder officers authorized on its behalf to sign this Agreement and the Servicer other Transaction Documents to be delivered by it hereunder (on which certificate the Agent and the Lenders may conclusively rely until such time as in effect on the Closing DateAgent shall receive from such Loan Party a revised certificate meeting the requirements of this subsection (b)); (c) a certificate The Certificate of Formation or other organizational documents of each Loan Party, duly certified by the Secretary of State of such Loan Party's state of incorporation or organization, as of a Responsible Officer recent date acceptable to the Agent in each case together with a copy of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions by-laws or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as organizational document of such earlier date)Loan Party, (iv) that no Default duly certified by the Secretary or Event an Assistant Secretary of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partysuch Loan Party or other appropriate officer; (d) [Reserved]Copies of good standing certificates or similar certificates of existence for each Loan Party, issued by the Secretaries of State of the state of incorporation or organization of such Loan Party and the state where such Loan Party's principal place of business is located; (e) [Reserved]Acknowledgment copies (or other evidence of filing reasonably acceptable to the Agent) of (i) proper financing statements (Form UCC-1), in such form as the Agent may reasonably request, naming the Originator as debtor and seller of its Receivables and Related Assets, the Seller as the secured party and purchaser thereof and the Agent, as agent for the Secured Parties, as assignee, (ii) financing statements (Form UCC-1), in such form as the Agent may reasonably request, naming the Seller as debtor and seller of its Receivables and Related Assets, the Borrower as the secured party and purchaser thereof and the Agent, as agent for the Secured Parties, as assignee and (iii) financing statements (Form UCC-1), in such form as the Agent may reasonably request, naming the Borrower as the debtor and the Agent, as agent for the Secured Parties, as the secured party, or other, similar instruments or documents, as may be necessary or, in the opinion of the Agent desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the sale by the Originator to the Seller and the Seller to the Borrower of, and the Agent's security interest in, the Collateral; (f) a certificate of a Responsible Officer of Search reports provided in writing to the Servicer certifying, respectively, Agent (i) listing all effective financing statements that name any Loan Party as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement debtor and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth are filed in the Facility Documents jurisdictions in which filings were made pursuant to subsection (e) above and in such other jurisdictions that the Agent shall reasonably request, together with copies of such financing statements (none of which it is a party are true and correct in all material respects as (other than any of the Closing Date financing statements described in subsection (except e) above or financing statements in favor of the agent pursuant to the extent such representations and warranties expressly relate to Senior Credit Agreement) shall cover any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier dateReceivables or Related Assets), and (ivii) as listing all tax liens and judgment liens (if any) filed against any debtor referred to in clause (i) above in the incumbency jurisdictions described therein and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyshowing no such Liens; (g) financing statements (or The Seller Note, duly executed by the equivalent thereof in any applicable foreign jurisdictionBorrower and the Initial PCA Note, as applicable) in proper form for filing on duly executed by the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementSeller; (h) copies A favorable opinion of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary counsel to release all security interests and other rights of any Person Loan Parties admitted to practice in the Collateral previously granted by State of Illinois, covering the Borrower, the Equityholder or any transferormatters set forth in Exhibit 5.1(h); (i) legal Favorable opinions (addressed to each of the Secured Parties) of counsel to Loan Parties, as to: (1) the Borrower, existence of a "true sale" of the Equityholder, Receivables from the Servicer, Originator to the Collateral Agent Seller and from the Seller to the Borrower under the Sale Agreement and the CustodianPurchase and Sale Agreement, covering such matters as respectively; and (2) the Administrative Agent inapplicability of the doctrine of substantive consolidation to the Borrower and its counsel shall reasonably requestthe Originator and to the Borrower and the Seller in connection with any bankruptcy proceeding involving any Loan Party; (j) evidence reasonably satisfactory to it that all A pro forma Information Package, prepared as of the Covered Accounts shall have been establishedCut-Off Date of October 31, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect2000; (k) evidence that A report in form and substance satisfactory to the Agent from the Initial Due Diligence Auditor as to a pre-closing due diligence audit by the Initial Due Diligence Auditor; (il) The Liquidity Agreement, in form and substance satisfactory to the Agent, duly executed by the parties thereto; (m) With respect to the Performance Guarantor, copies of its most recent reports on SEC Forms 10-K and 10-Q; (n) The Fee Letter, together with payment of any and all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with date of the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrowerinitial Advance; (lo) delivery A certificate of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies an Authorized Officer of each of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated Loan Parties certifying that as of the Closing Datedate of the initial Advance, certifying to the effect that, in the case no Event of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower Default or Unmatured Default exists and is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreementcontinuing; and (iiip) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such Such other opinionsagreements, instruments, certificates certificates, opinions and other documents from the Borrower as the Agents or any Lender shall have Agent may reasonably requestedrequest.

Appears in 1 contract

Samples: Credit and Security Agreement (Packaging Corp of America)

Conditions Precedent to Initial Advance. The obligation willingness of each Lender the Bank to make its consider making the Advances under Article II (including the initial Advance hereunder shall be Advance) is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date day of such Advance all of the following, each dated (unless otherwise indicated) such day, in form and substance reasonably satisfactory to the Administrative AgentBank: (a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) The Revolving Note and Term Note duly executed and delivered by the parties thereto, which shall each be in full force and effect;executed. (b) true and complete copies A certified copy of the Constituent Documents resolutions of the BorrowerBorrower authorizing the execution, delivery and performance of this Agreement, the Equityholder Notes, Collateral Documents and the Servicer as in effect on the Closing Date;other matters contemplated hereby. (c) a certificate Copies of a Responsible Officer the articles of incorporation and bylaws of the Borrower certifying certified by its secretary as being true and correct. (id) Evidence that the Borrower is in good standing with the office of the Delaware Secretary of State, North Dakota Secretary of State, Minnesota Secretary of State, South Dakota Secretary of State, Nebraska Secretary of State, Iowa Secretary of State, Montana Secretary of State and Wyoming Secretary of State. (e) Intercreditor agreements executed by Case LLC, Case Credit Corporation, New Holland Credit Company, LLC, New Holland North America, Inc., GE Commercial Distribution Finance Corporation and such other third party creditors of the Borrower as the Bank deems necessary, in form and content satisfactory to its Constituent Documentsthe Bank. (f) A security agreement duly executed and related financing statement, (ii) as together with any such other documentation required by the Bank, whereby to its resolutions secure the Obligations of the Borrower to the Bank, the Borrower grants the Bank a perfected security interest in all of the Borrower’s inventory, equipment, fixtures, contract rights, chattel paper, accounts and other rights to payment, deposit accounts and general intangibles whether now owned or other action of its designated manager approving this Agreement hereafter acquired and wherever located and the other Facility Documents to which it is a party products and the transactions contemplated hereby and thereby, (iii) that its representations and warranties proceeds thereof all as more specifically set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;security agreement. (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction Evidence that the Administrative Agent deems necessary or desirable security interest granted by the security agreement referred to in order (f) above is subject only to perfect the interests in the Collateral prior liens, if any, contemplated by this Agreement;the intercreditor agreements referred to in (e) above and the purchase money liens contemplated by Section 6.2 (f). (h) copies A certificate of proper financing statement amendments (insurance evidencing a policy or policies of insurance covering the equivalent thereof in any applicable foreign jurisdictionBorrower’s operations and property as required by Section 5.7 of this Agreement, such policy to insure against all risks and names the Bank as applicable), if any, necessary mortgagee/lender loss payee on all property policies which insures the property of the Borrower subject to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;Documents. (i) legal opinions (A signed copy of an opinion of counsel for the Borrower addressed to each of the Secured Parties) of counsel Bank and its participants in form and substance acceptable to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;Bank. (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;A completed Borrowing Base Certificate. (k) evidence that (i) Copies of all fees leases of real property under which the Borrower is a tenant, together with a Landlord’s Disclaimer and expenses due Consent in favor of the Bank, in form and payable to each Lender on or prior content acceptable to the Closing Date have been received or will be received contemporaneously with Bank, from the Closing Date; (ii) the reasonable and documented fees and expenses landlord of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees each such lease properly executed on behalf of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;such landlord. (l) delivery of such Collateral (including any promissory noteAny and all other agreements, executed assignment agreements documents, instruments and Word powers as the Bank may require or pdf copies deem necessary, in its sole discretion, to carry into effect the purposes of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) documents described in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free this Section 3.1 and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Loan Agreement (Titan Machinery Inc.)

Conditions Precedent to Initial Advance. The obligation of each Lender the Lenders to undertake the Commitment and to make its the initial Advance hereunder shall be is subject to the conditions precedent that prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received on or before the Closing Date each of the following, each in form and substance reasonably satisfactory to the Administrative AgentAgent and its counsel: (ai) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents The loan certificate of the Borrower, in substantially the Equityholder form attached hereto as EXHIBIT O, including a certificate of incumbency with respect to each Authorized Signatory, together with appropriate attachments which shall include, without limitation, the following items: (A) a copy of the certificate of incorporation of the Borrower, certified to be true, complete and correct by the Servicer Secretary of State of Delaware, (B) a copy of the by-laws of the Borrower as in effect on the Closing Agreement Date; , (cC) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the States of Delaware, Missouri, California and Illinois, and for each other state in which the Borrower is required to qualify or has qualified to do business, (D) a certificate of a Responsible Officer true, complete and correct copy of the Borrower certifying (i) as authorizing resolutions of the Borrower, authorizing it to its Constituent Documentsexecute, (ii) as to its resolutions or other action of its designated manager approving deliver and perform this Agreement and the other Facility Loan Documents to which it is a party party, and (E) a true, complete and correct copy of any agreement in effect with respect to the transactions contemplated hereby and therebyvoting rights, ownership interests, or management of the Borrower; (ii) Duly executed Subordination Agreement; (iii) that its representations and warranties set forth Duly executed Note to the order of each Lender in the Facility Documents to which it is a party are true and correct in all material respects as amount of such Lender's pro rata share of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), Commitment; (iv) that no Default Duly executed Borrower's Pledge Agreement, together with any appropriate stock certificates and undated stock powers executed in blank; (v) Duly executed Security Agreement; (vi) Lien search results with respect to the Borrower and each Subsidiary from all appropriate jurisdictions and filing offices; (vii) Original UCC-1 financing statements, signed by the Borrower as debtor and naming the Administrative Agent as secured party to be filed in all appropriate jurisdictions; (viii) A loan certificate from each Subsidiary of the Borrower, in substantially the form attached hereto as EXHIBIT P, including a certificate of incumbency with respect to each officer authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which shall include, without limitation, the following items: (A) a copy of the certificate or Event articles of Default has occurred incorporation of such Subsidiary, certified to be true, complete and correct by the Secretary of State from the jurisdiction of incorporation of such Subsidiary, (B) certificates of good standing for such Subsidiary issued by the Secretary of State or similar state official for each state in which such Subsidiary is continuingincorporated or required to qualify to do business, (C) a true, complete and correct copy of the By-Laws of such Subsidiary, and (vD) as a true, complete and correct copy of the resolutions of such Subsidiary authorizing it to execute, deliver and perform the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Loan Documents to which it is a party; (dix) [Reserved]A duly executed Subsidiary Security Agreement, executed and delivered by each Guarantying Subsidiary of the Borrower; (ex) [Reserved]Original UCC-1 financing statements, signed by each Guarantying Subsidiary, respectively, as debtor, and naming the Administrative Agent as secured party to be filed in all appropriate jurisdictions; (fxi) a certificate of a Responsible Officer A duly executed Subsidiary Guaranty executed and delivered by each Guarantying Subsidiary of the Servicer certifyingBorrower; (xii) A duly executed Subsidiary Pledge Agreement from any Guarantying Subsidiary of the Borrower which has one or more corporate Subsidiaries, together with appropriate stock certificates and undated stock powers executed in blank; (xiii) A duly executed Assignment of Intercompany Agreements from the Borrower with respect to its rights under the Intercompany Agreements properly acknowledged and agreed to by CellNet California, and together with appropriate UCC-l financing statement forms and other appropriate forms of perfection; (xiv) A duly executed Assignment of Utility Contract from the Borrower with respect to its rights under the Utility Contract properly acknowledged and agreed to by Union Electric, and together with appropriate UCC-l financing statement forms and other appropriate forms of perfection; (xv) A certificate executed by the Borrower and Union Electric in form and substance satisfactory to the Administrative Agent certifying that the Borrower is not in default under the Union Electric Contract in any material respect and attaching a true, correct and complete copy of the Union Electric Contract; (xvi) Proof of payment of all title insurance premiums, documentary stamp or intangible taxes, recording fees and mortgage taxes payable in connection with the recording of any of the Loan Documents or the issuance of the title insurance commitments referred to above (whether due on the Agreement Date or in the future) including such sums, if any, due in connection with any future Advances; (xvii) Copies of any existing environmental reviews and audits with respect to Property owned by the Borrower and other information pertaining to actual or potential environmental claims as Administrative Agent may require; (xviii) Copies of insurance binders or certificates covering the assets of the Borrower and its Subsidiaries, naming the Administrative Agent as additional insured or named loss payee, as applicable, and otherwise meeting the requirements of Section 5.5 hereof; (xix) Legal opinions of (A) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel to the Borrower and the Subsidiaries, regarding, among other things, the absence of conflict between the Loan Documents CellNet's high-yield debt documents and instruments including the Indenture, and (B) Wikinson, Barker, Xxxxxx & Xxxxx, LLP, FCC counsel to the Borrower and the Subsidiaries, in each case addressed to each Lender and the Administrative Agent, and dated as of the Agreement Date, in substantially the forms attached hereto as EXHIBITS Q AND R, respectively; (xx) Duly executed Request for Advance for the initial Advance of the Loans, which Request for Advance shall include calculations demonstrating, as of the Agreement Date, and after giving effect to the funding of the initial Advance hereunder and other payments being made and effected as of the Agreement Date, the Borrower's pro forma compliance with Sections 7.10, 7.11, 7.12 and 7.13 hereof; (ixxi) as to Duly executed Use of Proceeds Letter; (xxii) Duly executed Certificate of Financial Condition for the Borrower and its Constituent DocumentsSubsidiaries on a consolidated basis, given by the chief financial officer of the Borrower which shall include a certification that no event has occurred which could have a Materially Adverse Effect since June 30, 1998; (iixxiii) as to Audited financial statements of the Borrower and its resolutions Subsidiaries on a consolidated basis for the fiscal year ended December 31, 1997, and an unaudited balance sheet and income statement of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ended June 30, 1998, demonstrating that CellNet has made an equity investment in the Borrower in an amount not less than $62,500,000; (xxiv) Copies of any pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the satisfaction in full of all pre-existing Indebtedness for Money Borrowed (except for Permitted Debt and CellNet Subordinated Debt) of the Borrower and its Subsidiaries, and the termination of any Liens (other than Permitted Liens) on the assets of the Borrower or other action any of its board Subsidiaries including Liens securing the Indebtedness for Money Borrowed being refinanced by the initial Advance; (xxv) Comfort Letter from CellNet, in form and substance satisfactory to the Lenders; (xxvi) Operating and financial projections of directors the Borrower indicating future compliance with all applicable covenants during the term of this Agreement; and (xxvii) All such other documents as either the Administrative Agent or members approving any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested. (b) The Administrative Agent shall have received evidence satisfactory to it that the Borrower has obtained all technically compatible FCC spectrum allocations necessary to operate a wireless data transmission system for Union Electric and that all Necessary Authorizations, including all necessary consents to the execution, delivery and performance by the Borrower of this Agreement and the other Facility Loan Documents to which it is a party and by the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in Subsidiaries of the Facility Loan Documents to which it is a party they are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier dateparties, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been establishedobtained or made, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be are in full force and effect;effect and are not subject to any pending or, threatened reversal or cancellation prior to its stated termination date, and the Administrative Agent shall have received a certificate of an Authorized Signatory so stating. (kc) evidence that The Administrative Agent shall be satisfied with all terms and conditions, including any subordination provisions, of all Indebtedness of CellNet and all pre-existing Indebtedness (iincluding Permitted Debt and CellNet Subordinated Debt) of the Borrower. (d) The Lenders, the Administrative Agent, and Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, special counsel to the Administrative Agent, shall receive payment of all reasonable fees and expenses due and payable to each Lender on or prior to the Closing Agreement Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses in respect of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requestedhereby.

Appears in 1 contract

Samples: Loan Agreement (Cellnet Data Systems Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender Bank’s agreement to make its the initial Advance hereunder shall be is subject to the conditions condition precedent that the Administrative Agent Bank shall have received on or before the Closing Date the followingreceived, each in form and substance reasonably satisfactory to Bank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation, subject to the Administrative Agentcondition precedent that Bank shall have received, in form and substance satisfactory to Bank, the following from each Borrower: (a) each a certificate of the Facility Documents (other than Secretary of Borrower with respect to articles, bylaws, incumbency and resolutions authorizing the Collateral Agent Fee Letter which shall be delivered directly to execution and delivery of this Agreement, the Collateral Agent) duly executed Loan Documents, and delivered by the parties all transactions related thereto, which shall each be in full force and effectincluding the Warrant; (b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Datean Intellectual Property Security Agreement; (c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partysubordination agreements/intercreditor agreements by certain Persons; (d) [Reserved]Perfection Certificates by Borrower and Guarantor; (e) [Reserved]a legal opinion of Borrower’s and Guarantor’s counsel (authority/enforceability); (f) a certificate of a Responsible Officer of guaranty by the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyGuarantor; (g) financing statements (or Stock Pledge Agreement by the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementGuarantor; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary Warrant to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferorPurchase Stock; (i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably requestSecurities Account Control Agreements; (j) evidence reasonably satisfactory to it that all Certificates of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effectinsurance evidencing compliance with Section 6.4 hereof; (k) evidence that (i) all payment of the fees and expenses Bank Expenses then due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrowerpayable; (l) delivery Certificate of such Collateral Foreign Qualification (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effectedif applicable); (m) a certificate Certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted LiensGood Standing/Legal Existence; (iin) the Borrower has not assignedInitial Audit; (o) payoff letter from existing lienholders; (p) duly executed original signatures to the Control Agreements; (q) evidence of the release of all claims held by and the termination of any litigation brought by Jxxxxx Xxxxxxx against each Borrower, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant form and substance satisfactory to this AgreementBank; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (nr) such other opinionsdocuments, instrumentsand completion of such other matters, certificates and documents from the Borrower as the Agents Bank may reasonably deem necessary or any Lender shall have reasonably requestedappropriate.

Appears in 1 contract

Samples: Loan and Security Agreement (Technest Holdings Inc)

Conditions Precedent to Initial Advance. The obligation of each Lender the Banks to make its the initial Advance hereunder shall be is subject to the conditions precedent that receipt by the Administrative Agent shall have received Banks on or before the Closing Date of all of the following, each dated the Closing Date or another date prior to the Closing Date acceptable to the Banks and each to be in the form and substance reasonably satisfactory to approved by the Administrative Agent: (a) each of Banks on the Facility Documents (other than the Collateral Agent Fee Letter date on which shall be delivered directly to the Collateral Agent) duly this Agreement is executed and delivered by Borrower and the parties thereto, which shall each be in full force and effect;Banks: (bA) true A favorable opinion of Xxxxx X. Xxxxxx, Senior Vice President, Secretary and complete copies General Counsel of Borrower, substantially in the form of Exhibit C attached hereto. (B) A certified copy of the Constituent Documents of FERC Order authorizing the Borrower, Borrower to incur the Equityholder and Indebtedness contemplated by the Servicer as in effect on the Closing Date;Financing Documents. (cC) a certificate A Certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (d) [Reserved]; (e) [Reserved]; (f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with Existence from the Secretary of State of Indiana, dated not more than five (5) days before the Closing Date, stating that Borrower is duly organized and existing under the laws of the State of Delaware and any other applicable filing office in any applicable jurisdiction that Indiana. (D) Payment to the Administrative Agent deems necessary or desirable in order to perfect and the interests in the Collateral contemplated by this Agreement; (h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor; (i) legal opinions (addressed to each Banks of the Secured Parties) fees specified in this Agreement as being payable on the Closing Date and the legal fees of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Administrative Agent and the CustodianBanks, covering such matters and other expenses. (E) Evidence required by the Administrative Agent and the Banks to establish that Borrower has the authority to enter into this Agreement and that all Financing Documents executed in connection with the Loans will be valid and binding obligations of Borrower, fully enforceable in accordance with their respective terms under applicable law. Such evidence shall include, without limitation, the opinion of counsel referenced in Section 3.2(A) hereof, resolutions of the board of directors of Borrower and a certificate of the Secretary of Borrower certifying the same. (F) Certified copies of Borrower's Articles of Incorporation and By-Laws, each as amended to date. (G) A written certificate of the Secretary of Borrower as to the names and signatures of the officers of Borrower authorized to sign this Agreement and the Notes and other documents to be executed and delivered pursuant hereto. (H) Evidence that Borrower has terminated the "Commitments" under, and paid in full all Indebtedness outstanding under, the Credit Agreement dated as of December 20, 1996 among Borrower, various financial institutions and ABN Amro Bank, N.V., Chicago Branch, as administrative agent. (I) Such other information about Borrower and/or its assets, business and/or financial condition as the Administrative Agent and its counsel shall or the Banks may reasonably request; (j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower; (l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens; (ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and (iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and (n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.

Appears in 1 contract

Samples: Credit Agreement (Ipalco Enterprises Inc)