Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder: (a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government office; (b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities; (c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral; (d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof; (e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located; (f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower; (g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder; (h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee; (i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems; (j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests; (k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and (l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 2 contracts
Samples: Loan and Security Agreement (Anvil Knitwear Inc), Loan and Security Agreement (Anvil Holdings Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate corporate, limited liability company, limited partnership and trust action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate corporate, limited liability company, limited partnership and trust action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation or certificate of formation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate, limited liability company, limited partnership or trust name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation or formation);
(cb) no material adverse change shall have occurred in the assets, business or prospects financial condition (financial or otherwise) of Borrower Borrowers since February 18, 1999, the date of Lender's Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(dc) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(ed) Lender Agent shall have received, in form and substance substance satisfactory to LenderAgent, all consents, waivers, acknowledgments acknowledgments, estoppels and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is locatedAgreements;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(ge) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 15,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(f) Agent shall have received, in form and substance satisfactory to Agent, the Term B Loan Intercreditor Agreement, duly authorized, executed and delivered by Term B Loan Agent and acknowledged and agreed to by Borrowers and Guarantors;
(g) Agent shall have received, in form and substance satisfactory to Agent, the Subordinated Noteholder Intercreditor Agreement, duly authorized, executed and delivered by Term B Loan Agent and Subordinated Note Trustee and acknowledged and agreed to by Borrowers and Guarantors;
(h) Lender Agent shall have received, in form and substance satisfactory to Agent, the WHX Intercreditor Agreement, duly authorized, executed and delivered by Term B Loan Agent and WHX and acknowledged and agreed to by Borrowers and Guarantors;
(i) Agent shall have received, in form and substance satisfactory to Agent, the Intercompany Subordination Agreement, duly authorized, executed and delivered by Borrowers and Guarantors;
(j) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral, subject (as to priority) to the liens expressly permitted under Sections 9.8(b) through (g) hereof;
(k) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which Borrowers and Guarantors own Real Property and in the case of any Borrower or Guarantor that owns personal property in Canada, the Province in which such personal property is located, which search results shall be in form and substance satisfactory to Agent;
(l) Agent shall have received, in form and substance satisfactory to Agent, a valid and effective proforma endorsement to the title insurance policy for each parcel of Real Property for which a mortgagee title insurance policy has been issued to Agent or a Borrower or Guarantor;
(m) Agent shall have received appraisals of the Real Property owned by the Borrowers to which Term Loans are made in form, scope and methodology satisfactory to Agent, the results of which shall be satisfactory to Agent;
(n) Agent shall have received, in form and substance satisfactory to Agent, a certificate, dated of even date herewith, of the chief financial officer of Parent, stating that immediately after giving effect to the transactions contemplated to occur under the Financing Agreements, the Term B Loan Financing Agreements, the Subordinated Note Documents and the WHX Subordinated Note Documents on the date hereof, each Borrower, H&H Canada and Atlantic (on a stand-alone basis) is Solvent;
(o) Agent shall have received, in form and substance satisfactory to Agent, (i) true, correct and complete copies of the Term B Term Loan Financing Agreements as duly authorized, executed and delivered by the parties thereto, and (ii) evidence that the transactions contemplated under the Term B Term Loan Agreement have been consummated prior to or contemporaneously with the execution of this Agreement;
(p) Agent shall have received, in form and substance satisfactory to Agent, (i) true, correct and complete copies of the Subordinated Note Documents as duly authorized, executed and delivered by the parties thereto, and (ii) evidence that the transactions contemplated under the Subordinated Note Documents have been consummated prior to or contemporaneously with the execution of this Agreement;
(q) [Intentionally Deleted];
(r) Agent shall have received, in form and substance satisfactory to Agent, (i) true, correct and complete copies of the WHX Subordinated Note Documents as duly authorized, executed and delivered by the parties thereto, and (ii) evidence that the transactions contemplated under the WHX Subordinated Note Documents have been consummated prior to or contemporaneously with the execution of this Agreement;
(s) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(t) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements endorsements naming Lender Agent as additional insured or loss payee, as applicable;
(iu) Lender Agent shall have received environmental audits of Borrower's Real Property covered by a Borrowing Base Certificate setting forth the Mortgages conducted by an independent environmental engineering firm acceptable Revolving Loans available to LenderBorrowers, and on or about the date hereof, as completed in form, scope and methodology a manner satisfactory to LenderAgent and duly authorized, confirming (i) Borrower is in compliance with all material applicable Environmental Laws executed and (ii) the absence delivered on behalf of any material environmental problemsBorrowers;
(jv) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of United States and Canadian counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request;
(w) Agent shall have received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by Existing Bairnco Agent and Existing Bairnco Lenders of the financing arrangements among Existing Bairnco Agent, Existing Bairnco Lenders, Bairnco and its Subsidiaries and the termination and release by Existing Bairnco Agent and Existing Bairnco Lenders of any interest in and to any assets and properties of Bairnco and its Subsidiaries, duly authorized, executed and delivered by Existing Bairnco Agent and Existing Bairnco Lenders, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by any of them or their predecessors, as secured party, and Bairnco and its Subsidiaries, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Bairnco or any of its Subsidiaries in favor of Existing Bairnco Agent, in form acceptable for recording with the appropriate Governmental Authority;
(x) Agent shall have received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by Ableco Finance LLC of the financing arrangements among Ableco Finance LLC, the other lenders party thereto, Bairnco and its Subsidiaries and the termination and release by Ableco Finance LLC and such other lenders of any interest in and to any assets and properties of Bairnco and its Subsidiaries, duly authorized, executed and delivered by Ableco Finance LLC and such other lenders, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by any of them or their predecessors, as secured party, and Bairnco and its Subsidiaries, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Bairnco or any of its Subsidiaries in favor of Ableco Finance LLC, in form acceptable for recording with the appropriate Governmental Authority; and
(ly) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance reasonably satisfactory to Lender, all releases, terminations and such other documents as Lender may reasonably request to evidence and effectuate the termination by the Existing Lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower Borrowers and each Obligorany Obligor in connection with such financing arrangements, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officedebtor;
(b) Lender shall have received evidence, in form and substance reasonably satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where reasonably requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assetsassets or business of Borrowers, business or prospects of Borrower taken as a whole, since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or Obligor in any Obligor material respect to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may reasonably require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through a date not more than three (3) Business Days prior to the date of closing hereof (or such earlier date which is acceptable to Lender) and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be reasonably satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(ef) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of the Subsidiaries of TWI incorporated under the laws of any State of the United States of America and stock certificates representing sixty-five (65%) percent of the issued and outstanding shares of Capital Stock of the Subsidiaries of TWI which are not incorporated under the laws of a State of the United States of America, in each case together with stock powers duly executed in blank with respect thereto;
(g) Lender shall have received, in form and substance reasonably satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may reasonably deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners lessors, mortgagees and lessors of leased premises of Borrower warehousemen and agreements from sales agents used by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and any Borrower;
(gh) the aggregate amount of the Excess Availability as determined by Lender in good faithof Borrowers shall be not less than $5,000,000, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and initial Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent reasonably acceptable to Lender (i) insuring the priority, amount and sufficiency of the MortgagesMortgage, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(k) Lender shall have received, in form and substance reasonably satisfactory to Lender, such opinion letters of counsel counsel(s) to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and the security interests and liens of Lender with respect to the Collateral and such other matters as Lender may requestreasonably request (and including opinion letters of counsel to TWI and its Subsidiaries in Taiwan, Mexico and the People's Republic of China with respect to the pledge of the Capital Stock of its Subsidiaries to Lender); and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance reasonably satisfactory to Lender.
Appears in 2 contracts
Samples: Loan and Security Agreement (Waxman Industries Inc), Loan and Security Agreement (Waxman Industries Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements; without limiting the foregoing, Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower Borrowers and Guarantors and/or their respective Subsidiaries of their such existing lenders' respective financing arrangements with Borrower Borrowers and Guarantors and/or such Subsidiaries and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties property of each Borrower or Guarantor and each Obligorits Subsidiaries, duly authorized, executed and delivered by it or each of themsuch existing lender, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it each such existing lender or any of them or their its predecessors, as secured party party, and Borrower any Borrower, any Guarantor, any such Subsidiary or any other Obligor, as debtor debtor, and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor, its Subsidiaries or any other Obligor in favor of such Existing Lender or Lendersexisting lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of any Borrower or Guarantor since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kg) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and such other matters as Lender may request;
(h) Lender shall have conducted such review and due diligence as it deems appropriate (with the results of such review and due diligence to be satisfactory to Lender) with respect to (i) contracts pursuant to which any of the Borrowers render services to its customers, (ii) performance bonds, and any similar instruments or performance support, which any Borrower has provided to any of its customers (iii) all collective bargaining agreement to which any Borrower or any Subsidiary of a Borrower is a party and (iv) other matters pertaining to the business, operations or assets of any of the Borrowers or their Subsidiaries;
(i) Lender shall have received evidence satisfactory to it of the completion of the issuance, on terms acceptable to Lender, by Parent of the Senior Notes and Parent shall be simultaneously receiving the proceeds thereof and applying such proceeds to repay all outstanding indebtedness for borrowed money or capital leases of Borrowers and their respective Subsidiaries (other than approximately $800,000 in principal amount of indebtedness incurred to finance vehicles used in Borrowers' paratransit operations);
(j) Lender shall have received (i) a guarantee agreement, in form and substance satisfactory to it, from (A) each Borrower, guaranteeing the Obligations of all other Borrowers, and (B) Parent and each Subsidiary of Parent that is not a Borrower, guaranteeing the Obligations of all Borrowers and (ii) a security agreement from each Subsidiary of Parent that is not a Borrower, granting Lender a security interest in its personal property of the same types as the Collateral to secure its guarantee of the Obligations; and
(k) Lender shall have received the Intercreditor Agreement, duly executed by the collateral agent for the holders of the Senior Notes, and in full force and effect; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 2 contracts
Samples: Loan and Security Agreement (Atlantic Express Transportation Corp), Loan and Security Agreement (Atlantic Express Transportation Corp)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have receivedreceived evidence, in form and substance satisfactory to Lender, all releases, terminations that Lender has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral, subject only to any assets the security interests and properties of Borrower and each Obligor, duly authorized, executed and delivered by it liens permitted herein or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers as taken as a whole since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would materially impair the ability of Borrower or any Obligor the Borrowers when taken as a whole to perform its their obligations hereunder or under any of the other Financing Agreements to which it is they are a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors agreements permitting Lender access to, and the right to remain on for a reasonable period of leased time, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance (including credit insurance on Advance Auto Accounts in amounts satisfactory to Lender) and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kg) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of in-house counsel to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and such other matters as Lender may request; and;
(lh) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender; and
(i) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $3,500,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder.
(j) the Lender shall have received in form and substance satisfactory to Lender, an appraisal of the Collateral;
(k) Lender shall have received the Collateral Letter of Credit;
(l) Lender shall have received, in form and substance satisfactory to Lender, the Subordination Agreement;
(m) Lender shall have received, in form and substance satisfactory to Lender, a Guaranty from Guarantor of the Obligations;
(n) Lender shall have received a payment in cash in the amount of $550,000.00, in the form of a wire transfer from Borrower or any affiliate of Borrower for the credit of Borrower; and
(o) Lender shall have received such other agreements and documents which Lender shall requested.
Appears in 2 contracts
Samples: Loan and Security Agreement (LSB Industries Inc), Loan and Security Agreement (LSB Industries Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, any Person of any lien or security interest in and to any assets and properties of a Borrower and each ObligorGuarantor held by such Person (other than liens and security interests permitted by Section 9.8 hereof), duly authorized, executed and delivered by it or each of themsuch Person, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessorssuch Person, as secured party and any Borrower or any ObligorGuarantor, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor Guarantor in favor of such Existing Lender or LendersPerson, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, assets or business or prospects of Borrower Borrowers since February 18, 1999, the date of Lender's Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereofAgent;
(e) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 50,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a concentration account, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Agent shall be the bank ‘s customer with respect to such deposit account as Agent may specify);
(h) Lender Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral;
(i) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, which search results shall be in form and substance reasonably satisfactory to Agent;
(j) Agent shall have received a written appraisal as to the Inventory of Borrowers by an appraiser acceptable to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(k) Agent shall have received originals of the shares of the stock certificates (if any) representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(l) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(im) Lender Agent shall have received, in form and substance satisfactory to Agent, projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a quarterly basis for the period through the end of the 2008 fiscal year and thereafter, on an annual basis for each fiscal year through the end of the 2011 fiscal year, in each case with the results and assumptions set forth in all of such projections in form and substance reasonably satisfactory to Agent;
(n) Agent shall have received environmental audits a Borrowing Base Certificate setting forth the Revolving Loans and Letter of Borrower's Real Property covered by Credit Accommodations available to Borrowers as of the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and date hereof as completed in form, scope and methodology a manner reasonably satisfactory to LenderAgent and duly authorized, confirming (i) Borrower is in compliance with all material applicable Environmental Laws executed and (ii) the absence delivered on behalf of any material environmental problemsAdministrative Borrower;
(jo) Lender Agent shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request; and
(lp) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance reasonably satisfactory to LenderAgent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Travelcenters of America LLC), Loan and Security Agreement (Travelcenters of America LLC)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and each Guarantor and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorGuarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligorsuch Guarantor, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor such Guarantor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action or limited liability company action, as applicable, and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower and each Guarantors certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate or limited liability company name of Borrower or such Guarantor, as the case may be, as is set forth herein and such document as shall set forth the organizational identification number of Borrower or such Guarantor, if one is issued in its jurisdiction of incorporation or organization);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair in any material respect the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may reasonably require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three ten (310) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may reasonably deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, the Merger Agreements and the Senior Note Indenture, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is locatedAgreements;
(f) Lender Agent shall have receivedreceived evidence, in form and substance reasonably satisfactory to LenderAgent in good faith, all necessary agreements with that the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, Merger Agreements have been duly authorized, executed and delivered by such depository banks and Borrowerto the appropriate parties thereto, and the transactions contemplated under the terms of the Merger Agreements have been consummated prior to the execution of this Agreement;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency copies of the MortgagesSeller Notes, (ii) insuring against matters that would be disclosed executed by surveys and (iii) containing all of the parties thereto, providing for, among other things, the subordination in rights of payment of all Indebtedness owing by Borrower or any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect Obligors to the Financing Agreements Sellers under the Seller Notes to the right of Agent and such other matters as Lender may request; and
(l) Lenders to receive the other Financing Agreements final and indefeasible payment and satisfaction in full of all instruments of the Obligations and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.related matters;
Appears in 2 contracts
Samples: Loan and Security Agreement (Hhgregg, Inc.), Loan and Security Agreement (HHG Distributing, LLC)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have receivedreceived evidence, in form and substance satisfactory to Lender, all releases, terminations that Lender has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral and any other property which is intended to any assets and properties be security for the Obligations or the liability of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would materially impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) the Initial Excess Availability as determined by Lender, as of the date hereof, shall be not less than $4,900,000 after giving effect to the initial Loans made or to be made in connection with the initial transactions hereunder, and (ii) Lender shall have received environmental audits of evidence satisfactory to it that (A) Borrower's Real Property covered by past due payables are with existing and ongoing vendors to Borrower (except for the Mortgages conducted by an independent environmental engineering firm acceptable overdue account payable owing to LenderXxxxxxxx Xxxxxx Xxxx in the amount of $1,500,000), who continue to supply Borrower, and in form, scope who are not making immediate demands for the payment of past due amounts and methodology satisfactory to Lender, confirming (iB) Borrower is in compliance will be able to comply with all material applicable Environmental Laws and (ii) the absence of any material environmental problemsSection 9.18;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kh) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and;
(li) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender (including title insurance);
(j) Lender shall have received environmental audits of Borrower's plants and real estate conducted by an independent environmental engineering firm acceptable to Lender, confirming that Borrower is in compliance with all applicable Environmental Laws in all material respects and there is not (i) any material potential or actual liability of Borrower for any remedial action with respect to any environmental condition or (ii) any other significant environmental problems;
(k) Borrower shall have delivered to Lender a copy of all management reports and management letters relating to Borrower prepared by Borrower's independent public accountants; and
(l) Lender shall have received evidence that the copyrightable labels referred to in Section 8.11 have been registered with the U.S. Copyright Office.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by Bank One of the Existing Lenders to Borrower of their respective financing arrangements with Borrower Bank One Financing and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any ObligorBorrower, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) Agent shall have received, in form and substance reasonably satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by CIT of the CIT Financing and the termination and release by it of any interest in and to any assets and properties of each Borrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(c) Agent shall have received evidence, in form and substance satisfactory to Agent, that Borrowers have exchanged the Existing Senior Subordinated Notes (other than the Remaining Existing Subordinated Note Indebtedness) for the Senior Subordinated Notes.
(d) Agent shall have received evidence, in form and substance satisfactory to Agent, that Borrowers have exchanged the Existing Junior Subordinated Notes for the Junior Subordinated Notes.
(e) Agent shall have received a true, correct and complete copy of the Nomura Payoff Agreement, duly authorized, executed and delivered by the parties thereto.
(f) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower as is set forth herein and such document as shall set forth the organizational identification number of each Borrower, if one is issued in its jurisdiction of incorporation);
(cg) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (e) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or the ability of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(dh) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(ei) Lender Borrowers shall have, at their expense, delivered or caused to be delivered to Agent a written orderly liquidation value appraisal as to the Equipment (updated from the most recent appraisal received by Agent as to the Equipment prior to the date of this Agreement) in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent is expressly permitted to rely;
(j) Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of each Borrower and by processors and warehouses at which Collateral is located;
(fk) Lender Agent shall have receivedreceived the Intercreditor Agreement, in form and substance reasonably satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereofAgent, duly authorized, executed and delivered by such depository banks and BorrowerTerm Loan Agent, Borrowers;
(gl) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 5,500,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderhereunder but without giving effect to the Special Reserve, the Appraisal Reserve and the Rubber Group Reserve;
(hm) Lender Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower, as the case may be and each bank at which such Borrower has a deposit account (other than the Excluded Deposit Accounts, as defined in Section 5.2(d) hereof), in each case, duly authorized, executed and delivered by such bank and Borrower, as the case may be (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(n) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral, subject only to purchase money security interests in Equipment to the extent permitted in Section 9.8(e) hereof and as set forth on Schedule 8.4 to the Information Certificate, and any security interests on Insurance Premium Collateral to the extent permitted in Section 9.8(k) hereof which may have priority;
(o) Agent shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation of each Borrower, the jurisdiction of the chief executive office of each Borrower and all jurisdictions in which assets of Borrowers are located, which search results shall be in form and substance satisfactory to Agent;
(p) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of LRG, together with stock powers duly executed in blank with respect thereto;
(q) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(ir) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender Agent shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and such other matters as Lender Agent may reasonably request; and
(ls) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Lexington Precision Corp)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of any Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officedebtor;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower as is set forth herein and such document as shall set forth the organizational identification number of such Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change Material Adverse Change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateralexamination;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three five (35) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, agreements with Customs Brokers and the Collateral Access Agreements listed on Schedule 4.1 by owners and lessors of leased premises of Borrower Borrowers and by warehouses at which Collateral is located;
(f) the Excess Availability as determined by Lender, as of the date hereof shall be not less than Twenty Million Dollars ($20,000,000) after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the transactions hereunder;
(g) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with Deposit Account Control Agreements by and among Lender, Borrowers and each bank where any Borrower has the depository banks and Borrower with respect to the Blocked Central Collection Deposit Accounts as Lender may require pursuant to Section 6.3 hereofset forth on Schedule 4.1, in each case, duly authorized, executed and delivered by such depository banks bank and Borrower;
the relevant Borrower (g) the Excess Availability as determined by or Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect the bank's customer with respect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereundersuch deposit account as Lender may specify);
(h) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral, subject to the liens permitted pursuant to Section 9.8;
(i) Lender shall have received and reviewed lien and judgment search results for the jurisdictions of incorporation or organization of Borrowers, the jurisdictions of the chief executive offices of Borrowers and all jurisdictions listed on Schedule 4.1 in which assets of Borrowers are located, which search results shall be in form and substance satisfactory to Lender;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of any Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Parent, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(ef) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;
(f) Lender shall have received, in form remedies and substance satisfactory to Lender, all necessary agreements otherwise deal with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerCollateral;
(g) the sum of (i) the Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderhereunder plus (ii) the value of the Parent's Eligible Investments, as reasonably determined by Lender, plus (iii) the balance of the undrawn amount of the Term Loans under Section 2.3 shall not be less than $20,000,000.00;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid all instruments, agreements and effective title insurance policy issued by a company documents necessary for Lender to make Term Loans to Ultralife (UK) and agent acceptable to grant to Lender charges over all of Ultralife (i) insuring the priority, amount UK)'s assets and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed an undertaking by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interestssuch subsidiary;
(kj) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and such other matters as Lender may request;
(k) Lender shall have received a Borrowing Base Certificate setting forth the Loans available to Parent as of the date hereof as completed in a manner reasonably satisfactory to the Lender and duly authorized, executed and delivered on behalf of Parent; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Ultralife Batteries Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have receivedreceived evidence, in form and substance satisfactory to Lender, all releases, terminations that Lender has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral and any other property which is intended to any assets and properties be security for the Obligations or the liability of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kg) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and;
(lh) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender;
(i) Lender shall have received a one-time facility fee in the amount of $50,000 for the establishment of the credit facilities provided hereunder;
(j) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $750,000 after giving effect to the initial Loans made or to be made in connection with the initial transactions hereunder; and
(k) Lender shall have received evidence of the restructuring of payments to Nickelodeon on terms acceptable to Lender, such evidence to be in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower, the results of which shall be satisfactory to Lender;
(e) Lender shall have received, in form and substance satisfactory to Lender, all such consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, which may include acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral, subordination agreements in form and substance satisfactory to Lender from all of Borrower's vendors claiming any security interest in or lien upon any of the Collateral and Borrower's consignors who deliver inventory to Borrower from time to time pursuant to consignment arrangements with Borrower, and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral;
(f) [Intentionally Omitted]
(g) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(h) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(i) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(gj) the Excess Closing Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 12,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(lk) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have receivedreceived evidence, in form and substance satisfactory to Lender, all releases, terminations that Lender has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral and any other property which is intended to any assets and properties be security for the Obligations or the liability of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(ig) Lender shall have received environmental audits of Borrower's Real Property covered the Excess Availability as determined by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, as of the date hereof, shall be not less than $1,000,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance connection with all material applicable Environmental Laws and (ii) the absence of any material environmental problemsinitial transactions hereunder;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kh) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and
(li) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, evidence that the Purchase Agreements have been duly executed and delivered by and to the appropriate parties thereto and the transactions contemplated under the terms of the Purchase Agreements have been consummated prior to or contemporaneously with the execution of this Agreement;
(b) Lender shall have received, in form and substance reasonably satisfactory to Lender, a pro forma balance sheet of Borrower reflecting the initial transactions contemplated hereunder (the "Pro Forma Closing Balance Sheet"), including, but not limited to, (i) the consummation of the acquisition of the Purchased Assets by Borrower from Seller and the other transactions contemplated by the Purchase Agreements, including the payment of all costs, fees and expenses required to be paid at the closing of the acquisition of the Purchase Assets, (ii) all cash equity capital contributions to Borrower, (iii) the receipt by Borrower of the proceeds of the sale by Borrower of the Seller's footwear license for the territory of Japan, and (iv) the Loans and Letter of Credit Accommodations provided by Lender to Borrower on the date hereof and the use of the proceeds of the initial Loans as provided herein, accompanied by a certificate, dated of even date herewith, of the chief financial officer, or such other officer reasonably acceptable to Lender, of Borrower stating that such Pro Forma Closing Balance Sheet represents the reasonable, good faith opinion of such officer as to the subject matter thereof as of the date of such certificate;
(c) Lender shall have received, in form and substance satisfactory to Lender, evidence that Borrower has received net cash proceeds from a cash equity capital contribution to Borrower of not less than $58,000,000 from Perseus Investors and Union Overseas Holdings Limited and such proceeds have been applied to the purchase price for the Purchased Assets payable pursuant to the Purchase Agreements;
(d) The transfer by Borrower to Itochu Corporation of all right, title and interest in the Japanese Footwear Trademarks (as defined in the Stock Purchase and Trademark Agreement, entered into as of February 24, 2001, among Borrower, cre-8-net Ventures L.L.C. and Itochu Corporation (the "Stock Purchase Agreement")), and the other assets and rights conveyed by Borrower to Itochu Corporation pursuant to the Stock Purchase Agreement, shall have been closed prior to the making of any Loans and the grant of the security interests by Borrower pursuant to Section 5, and Lender shall have received, in form and substance satisfactory to Lender, evidence that Borrower has received not less than $29,000,000 in cash or other immediately available funds as proceeds from the sale by Borrower of the Seller's footwear license for the territory of Japan, and such proceeds have been applied to the purchase price for the Purchased Assets payable pursuant to the Purchase Agreements;
(e) no court of competent jurisdiction shall have issued any injunction, restraining order or other order with respect to the Converse Sale Order which otherwise prohibits the consummation of the transactions described in the Purchase Agreements or the Financing Agreements, or modifies such transactions, and no governmental or other action or proceeding shall have been commenced, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the Purchase Agreements or the Financing Agreements.
(f) Lender shall have received a certified copy of the Converse Sale Order as duly entered by the Bankruptcy Court in the Chapter 11 Case and the time within which any Person may contest or appeal from the Converse Sale Order shall have expired, without such contest or appeal having been taken (or if any contest or appeal shall have been taken from such Order, the contest for appeal shall have been finally disposed of, and the same shall not be subject to any further appeal or contest) and the Converse Sale Order shall, inter alia, (i) contain a finding that Borrower is a good faith purchaser for value of the assets of Seller under the Purchase Agreements within the meaning of Section 363(m) of the Bankruptcy Code and (ii) authorize Seller to sell the Purchased Assets to Borrower, free and clear of any security interests, liens, claims or encumbrances and to execute, deliver and perform the terms and provisions of all of the Purchase Agreements;
(g) Lender shall have received, in form and substance reasonably satisfactory to Lender, all releases, terminations and such other documents as Lender may reasonably request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(bh) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority;
(ci) no material adverse change shall have occurred in the assets, business or prospects of Borrower (including the Purchased Assets) since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair impair, in any material respect, the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(dj) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date close of closing business on April 27, 2001 and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(ek) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is locatedlocated to the extent required hereunder;
(fl) Lender shall have received a final written report of an appraisal of the inventory, conducted by an appraiser reasonably acceptable to Lender and on which Lender is expressly permitted to rely, in form, scope and methodology reasonably satisfactory to Lender setting forth the orderly liquidation value of each type of category of inventory and such other values as Lender may specify;
(m) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $14,000,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder and the payment of all costs, fees and expenses required to be paid by Borrower in connection with the Purchase Agreements and all transactions thereunder;
(n) Lender shall have received, in form and substance reasonably satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(go) the Excess Availability as determined by Lender shall have received evidence, in good faithform and substance reasonably satisfactory to Lender, as that Lender has a valid perfected first priority security interest in all of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderCollateral;
(hp) Lender shall have received and reviewed UCC search results for all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(q) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(jr) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Purchase Agreements, the Financing Agreements and such other matters as Lender may request; and
(ls) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Agent and each Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower Borrowers of their respective financing arrangements (other than Indebtedness permitted by Section 9.9) with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to the Purchased Assets and any assets and properties of Borrower Borrowers and each Obligor, and such releases, terminations and other documents shall be duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor debtor, (ii) PPSA terminations or hypothec discharges or acknowledgments for all PPSA financing statements or hypothecs previously filed or registered by it or any of them or their predecessors, or secured party and any Borrower or any Obligor, as debtor, and (iiiii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate or limited liability company name of each Borrower as is set forth herein and such document as shall set forth the organizational identification number of each Borrower, if one is issued in its jurisdiction of incorporation or formation);
(c) no material adverse change shall have occurred in the assets, business or prospects of any Borrower or the Purchased Assets since February 18, 1999, the date of LenderAgent's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender Agent or Lenders to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower Borrowers and by warehouses at which Collateral is located;, and the hypothecs, the security interests and liens of Agent upon the Collateral of the Canadian Borrowers.
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the combined Excess Availability of US Borrowers and Canadian Borrowers as determined by Lender in good faithAgent, as of the date hereof, shall be not less than the US Dollar Equivalent of $10,000,000 25,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, Borrowers and each bank where any Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and such Borrower (or shall be the bank's customer with respect to such deposit account as Agent may specify);
(h) Lender Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent for the benefit of itself and the Lenders and Canadian Lender, where applicable, has a valid perfected first priority security interest in, and first ranking hypothec on, all of the Revolving Loan Priority Collateral and a valid perfected second priority security interest in and second ranking hypothec on all other Collateral;
(i) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation or organization of each Borrower, the jurisdiction of the chief executive office of each Borrower and all jurisdictions in which assets of Borrowers are located, which search results shall be in form and substance satisfactory to Agent;
(j) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(ik) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to LenderThe order dated June 18, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency 2002 of the Mortgages, United States Bankruptcy Court for the District of Delaware (ii"Bankruptcy Court") insuring against matters that would be disclosed by surveys and approving the sale of the Division of the Sellers to Parent pursuant to Sections 363/365 of the United States Bankruptcy Code (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender."Sale Order")
Appears in 1 contract
Samples: Loan Agreement (Clean Harbors Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans Loans, and providing the initial Letter of Credit Accommodations hereunder:
(a) All of the representations and warranties of Borrowers and NSC contained in the Extension Agreement Financing Agreements shall be true and correct on and as of the Closing Date, except when made as of a specified date and as to such representations and warranties same shall have been true and correct as of the date specified and Lender shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of Borrowers and NSC to such effect.
(b) Borrowers and NSC shall have complied with all conditions and performed all covenants to be performed by any of them at a prior to the Closing Date and Lender shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of Borrower and NSC to such effect.
(c) No court of competent jurisdiction shall have issued any injunction or restraining order or other order with respect to the Reorganization Plan which prohibits the consummation of the transactions contemplated therein or modifies such transactions and no action or other proceeding shall have been commenced which seeks any of the foregoing or to restrain or modify any of the transactions described in the Financing Agreements.
(d) Lender shall have received, in form and substance satisfactory to Lender, (i) evidence that Lender has valid, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations, including the Real Estate Security, subject only to the security interests and liens permitted by Section 9.8 hereof or in the other Financing Agreements; and (ii) all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by others (except with respect Capital Lease obligations of Borrowers not in excess of $12,300,000, in the Existing Lenders aggregate) who have provided financial accommodations to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of any Borrower and each ObligorNSC, duly authorized, executed and delivered by it or each of them, including, but not limited to, (iA) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any ObligorNSC, as debtor and (iiB) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor of such Existing Lender others or Lenders, NSC in form acceptable for recording in the appropriate government office;.
(be) all All requisite corporate action and other actions and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and other actions and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;.
(cf) no No material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers or NSC since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor NSC to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;.
(dg) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans and Term Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;Closing Date.
(eh) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Lender's liens and security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;
(f) Lender shall have received, in form remedies and substance satisfactory to Lender, all necessary agreements otherwise deal with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;Collateral.
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops NSC with respect to the Financing Agreements Agreements, and the security interests and liens of Lender in the Collateral and such other matters as Lender may request; and.
(lj) the The other Financing Agreements requested or submitted by Lender from or to Borrowers and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
(k) Lender shall have received, in form and substance satisfactory to Lender all agreements with respect to (i) the Blocked Accounts and (ii)all investment property and all other deposit accounts of Borrowers or NSC as Lender may require, duly authorized, executed and delivered by Borrowers, NSC and the appropriate depository, financial or other applicable institution.
(l) Lender shall have received the Credit Card Acknowledgments, in each case duly authorized, executed and delivered by the Credit Card Issuers and Credit Card Processors.
(m) Lender shall have received in form and substance satisfactory to Lender copies of all of Borrowers' agreements with financial institutions regarding the collection of receipts from purchases made by customers on credit and debit cards.
(n) Each of the depository banks used by a Borrower for the deposit of receipts from the sale of merchandise and each other depository bank used by Borrower for the deposit of other proceeds of Collateral and other property, which is collateral security for the Obligations shall have been notified of Lender's security interest therein and shall have been irrevocably authorized and directed to send all funds on deposit with such banks only to the Blocked Account designated by Lender or as Lender otherwise directs.
(o) Lender shall have received, and NSC shall have obtained, in form and substance satisfactory to Lender, a final and unappealable order of the Bankruptcy Court in the Chapter 11 Case to which no objection or opposition shall have been filed or made:
(i) Approving the execution, delivery and performance of this Agreement and the other Financing Agreements to which it is a party, by NSC and the consummation of the transactions contemplated hereby and thereby;
(ii) Confirming the Reorganization Plan; and
(iii) As to such other matters as Lender may request.
(p) The Reorganization Plan shall concurrently with the making of the Initial Loans, have been consummated and Lender shall have received evidence satisfactory to it that all payments required to be made in connection therewith have been, or concurrently with the making of the Initial Loans will be, made.
(q) The amount payable by Borrowers to NSC and by NSC in connection with the consummation of the Reorganization Plan shall not exceed $51,000,000.
(r) Excess Availability, as of the Closing Date, shall not be less than $5,000,000, after giving effect to the Loans to be made and the Letter of Credit Accommodations to be provided in connection with the initial transactions hereunder.
(s) All indebtedness owing (i) by any Borrower to NSC and (ii) by the Borrowers among themselves shall have been fully subordinated to the Obligations, to Lenders satisfaction.
(t) Lender shall have received, in form and substance satisfactory to Lender, (i) a pro forma and market value consolidated and consolidating and combined and combining, as applicable, balance sheet of Borrowers, reflecting the initial transactions contemplated hereunder, including, but not limited to, (A) the Loans to be provided by Lender to Borrowers (B) the use of the proceeds of the initial Loans as provided herein and (C) the consummation of the Reorganization Plan and (ii) a projection and forecast of Borrowers' cash flow for their current and five(5) succeeding fiscal years all accompanied by a certificate, dated as of the Closing Date, of the chief executive officer and chief financial officer of Borrowers, stating that such pro - forma balance sheet, market value balance sheet and projection of cash flow, represents the reasonable, good faith opinion of such officers as to the subject matter thereof as of the date of such certificate and as to such other matters as Lender may request.
(u) The market value balance sheet of Borrower, the certificate and the projection referred to in Section 4.1 (t) hereof shall reflect to Lender's satisfaction that Borrowers, taken as a whole, are Solvent.
(v) The Reorganization Plan, as consummated, shall be acceptable to Lender.
(w) Borrowers shall not have granted any liens or security interests in any of their assets to any Person except (i) the security interest and liens permitted by Section 9.8 hereof, (ii) the liens and security interests granted to Lender and (iii) the Noteholders Liens, which shall in all respects be junior and subordinate to the liens and security interests of Lender, to Lender's satisfaction.
(x) Lender shall have received, in form and substance satisfactory to Lender, (i) a guarantee of payment by each Borrower of the Obligations owed by each of the other Borrowers and (ii) a guarantee of payment of the Obligations by NSC secured by a first and only security interest (except for the Noteholders Liens) in NSC's assets in favor of Lender granted by NSC.
(y) All Collateral owned by any Borrower to be furnished to Lender pursuant hereto or pursuant to any of the other Financing Agreements shall be furnished by the owner thereof directly to Lender and none of such Collateral shall be furnished through NSC and Borrowers and NSC shall have terminated any liens and security interests of NSC therein.
(z) The "Alternative Plan" (as defined in the Reorganization Plan) shall not have become effective and no event or circumstances shall exist which with or without the issuance of the "Direction Letter" (as defined in the Reorganization Plan) would allow the Alternative Plan to become effective.
(aa) Lender shall have received all such subordination agreements, non- disturbance agreements, assignments of leases, landlord's consents and other agreements and consents from landlords, subtenants, mortgagees and others with respect to the Real Estate Security as Lender shall request.
(bb) Lender shall have received evidence, satisfactory to it, that $15,000,000 has been contributed to the capital of NSC by PX & M Holdings, Inc., in cash.
(cc) Lender shall have received estoppel certificates from substantially all of Borrowers' landlords showing that no defaults thereunder by any Borrower exists or that any alleged default does not have a Material Adverse Effect.
(dd) Borrowers shall have furnished evidence to Lender that all property taxes on the Real Estate then due have been paid.
(ee) Borrowers shall have executed and delivered to Lender all Real Estate Security to Lender and Lender shall have received mortgagee title policies with respect thereto in such amounts and from such insurers and with such affirmative coverages as Lender may request, all in form and substance satisfactory to Lender.
(ff) Lender shall have received recent surveys of the Real Estate owned by Borrowers prepared by a licensed engineer, satisfactory to Lender, conforming to the descriptions and showing no encroachments and certified to Lender.
(gg) Lender shall have received appraisals for the Real Estate from appraisers acceptable to Lender, addressed to Lender, all in form and substance and showing such values therefor, as shall be acceptable to Lender.
(hh) Lender shall have received evidence of zoning of the Real Estate disclosing no violation of applicable regulations, satisfactory to Lender and flood zone certificates for the Real Estate, satisfactory to Lender.
(ii) Lender shall have received a certified copy of the Security Pledge as in effect on the Closing Date and same shall be satisfactory to Lender, in form and substance.Lender may permit Borrowers periods of up to ninety (90) days from the Closing Date to comply with and satisfy one or more of the conditions specified in Section 4.1 hereof and may defer funding of, or not fund at all, such amounts of the initial and future Loans as Lender shall determine, unless and until such conditions have been satisfied, all in Lender's sole discretion. Lender shall have no liability to Borrowers whatsoever for not funding any of the Loans if any such condition is not satisfied within such 90 day period.
Appears in 1 contract
Samples: Loan and Security Agreement (Nutritional Sourcing Corp)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with the transactions contemplated by this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authorities;
(cb) no material adverse change shall have occurred in the assets, business or prospects financial condition of Borrower and its Subsidiaries, taken as a whole, since February 18, 1999, the date of LenderAgent's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender Agent to enforce the Obligations or realize upon the Collateral;
(dc) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(ed) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements,, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(fe) Lender The Subsidiary Loan Agreement and the Financing Agreements (as defined therein) shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, been duly authorized, executed and delivered by such depository banks MJS and Borrowerthe other parties thereto;
(gf) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 5,000,000 after giving effect to the initial Loans made Purchase Agreements and the transactions contemplated thereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, Borrower and each bank where Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower (or Agent shall be the bank's customer with respect to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereundersuch deposit account as Agent may specify);
(h) Lender Agent shall have received and reviewed UCC search results for all jurisdictions in the United States and Canada which assets of Borrower and Guarantors are located, which search results shall be in form and substance satisfactory to Agent;
(i) Agent shall have received, in form and substance satisfactory to Agent, the Subordination Agreement and the Intercreditor Agreement duly executed and delivered by the parties thereto;
(j) Agent shall have received, in form and substance satisfactory to Agent, a Uniform Commercial Code filing authorization letter, duly executed and delivered by Borrower and the domestic Subsidiaries of Borrower, together with appropriate financing statements on Form UCC-1 or Form UCC-3, as applicable, duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect Agent's liens in and to the collateral of such domestic Subsidiaries of Borrower, and Agent shall have received confirmation of the filing of all such financing statements;
(k) Agent shall have received, in form and substance satisfactory to Agent, Appraisals of the Equipment of Borrower located in Fayette County, Alabama;
(l) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrower and Guarantors with respect to this Agreement, the other Financing Agreements and the security interests and liens of Agent and Lenders with respect to the Collateral and such other matters as Agent may request;
(m) Agent shall have received, in form and substance satisfactory to Agent, evidence that all conditions precedent to the Subsidiary Loan Agreement shall have been satisfied;
(n) Agent shall have received, in form and substance satisfactory to Agent, evidence that Agent has a valid perfected first priority security interest in all of the Collateral (including, without limitation, all assets of MJS and SAIM upon consummation of the Merger (as defined in the Subsidiary Loan Agreement) but subject to the prior lien of the Subsidiary Agent), other than liens permitted under the Subsidiary Loan Agreement or this Agreement;
(o) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(lp) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower Loan Parties and their Subsidiaries determined on a consolidated basis since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (b) below) and (ii) no change or event shall have occurred which would impair the ability of Borrower or any Obligor Loan Parties and their Subsidiaries to perform its their obligations hereunder or under any of the other Financing Agreements or Foreign Financing Agreements to which it is a party they are parties or of Lender any Agent Party to enforce the Obligations or Foreign Obligations, as applicable, or realize upon the Collateral or any Foreign Collateral, in each case taken as a whole;
(db) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral and Foreign Collateral as Lender Agent may require to determine the amount of Revolving Loans loans and financial accommodations available to Borrower Loan Parties and their Subsidiaries (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral and Foreign Collateral), the results of which each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(gc) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 40,000,000 after giving effect to (i) the initial Loans made or to be made hereunder and the Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder, (ii) the Foreign Advances made or to be made in connection with the initial transactions contemplated under the Foreign Financing Agreements and (iii) payment of all fees and expenses in connection with the transactions under the Financing Agreements and the Foreign Financing Agreements;
(hd) Lender Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreementsevidence, in form and substance satisfactory to LenderAgent, that each Collateral Agent has a valid perfected first priority security interest in all of the Collateral and certificates Foreign Collateral, as applicable; and
(e) Agent and its counsel shall have completed its review, with results satisfactory to Agent, of insurance policies and/or endorsements naming Lender all business and legal due diligence as loss payeemay be requested by Agent and its counsel;
(if) Lender Agent shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lenderbe satisfied that no investigation, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence litigation or other proceedings shall be pending or threatened against any Loan Party or any Subsidiary of any material environmental problemsLoan Party which could have a Material Adverse Effect in the reasonable determination of Agent;
(jg) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, a valid and effective title insurance policy issued detailed schedule of projected Excess Availability for fiscal year 2002 which shall be consistent with previously disclosed financial information by a company and agent acceptable Loan Parties to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may requestAgent; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Delco Remy International Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower, US Borrower and any of their subsidiaries of their respective financing arrangements with Borrower, US Borrower and any of their subsidiaries and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower, US Borrower and each Obligorsubsidiary, duly authorized, executed and delivered by it 24 or each of them, them including, but not limited to, (i) financing change statements and UCC termination statements providing for the discharge and/or termination of all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower, US Borrower or any Obligorsubsidiary, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower, US Borrower or any Obligor subsidiary in favor favour of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence (including any releases of any other liens or security interests in the Collateral required by Lender), in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change Material Adverse Change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateralexamination;
(de) Lender shall have received a Borrowing Base Certificate setting forth the Revolving Loans available to Borrower as of the end of Borrower's fiscal month ended on or about October 31, 1997, as completed in a manner satisfactory to Lender and duly authorized, executed and delivered on behalf of Borrower;
(f) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(eg) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgements by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;
(f) Lender shall have received, in form remedies and substance satisfactory to Lender, all necessary agreements otherwise deal with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderCollateral;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) the Combined Excess Availability, as determined by Lender as at the date hereof, shall have received environmental audits not be less than US$5,000,000 after giving effect to the initial Loans made or to be made and Letter 25 of Borrower's Real Property covered Credit Accommodations issued or to be issued in connection with the initial transactions hereunder and after giving effect to the initial US Loans made or to be made and the US L/C Accommodations issued or to be issued by Congress (Central) under the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, US Loan Agreement in connection with the initial transactions hereunder and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problemsthereunder;
(j) Lender shall have received, in form and substance reasonably satisfactory received evidence that Borrower has provided each Governmental Authority to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing whose jurisdiction it or any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interestssubsidiaries subject, with all required notices (if any) with respect to the Financing Agreements, the US Financing Agreements, and all Obligations and Collateral hereunder and thereunder;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrower and Cottontops the Obligors with respect to the Financing Agreements and such other matters as Lender may request; and
request including, without limitation, (li) the other status of the Obligations of US Borrower to Lender and Congress (Central) as "Senior Indebtedness" and "Designated Senior Indebtedness" under the indenture governing the Subordinated Notes, and (ii) the non-contravention of any provision of the Subordinated Note Agreements by reason of the execution, delivery or performance of the Financing Agreements and all instruments the US Financing Agreements (including, without limitation, the loans and documents other financial accommodations and guarantees hereunder and thereunder shall have been duly executed and delivered to Lender, in form the granting of liens and substance satisfactory to Lender.security interests as herein and therein provided);
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agents and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAdministrative Agent, and Lender Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Administrative Agent may have reasonably requested in connection therewith, such documents where requested by Lender Administrative Agent or its counsel to be certified by appropriate corporate officers (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or governmental authoritiesequivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(b) Agents shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation of Borrower and the jurisdiction of the chief executive office of the Borrower, which search results shall be in form and substance satisfactory to the Agents;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agents shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to LenderAgents, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender Agents may reasonably request; and;
(ld) Administrative Agent shall have received evidence of payment by Borrower of all accrued and unpaid fees, costs and expenses to the extent then due and payable on the Closing Date, together with all reasonable legal expenses and reasonable attorneys’ fees incurred by the Agents, plus such additional amounts as shall constitute the Agents’ reasonable estimate of reasonable legal expenses and reasonable attorneys’ fees incurred or to be incurred by the Agents through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and the Agents);
(e) the other Financing Agreements and all agreements, instruments and documents hereunder and thereunder set forth on the closing checklist attached as Exhibit E hereto shall have been duly executed and delivered to LenderAdministrative Agent, in form and substance satisfactory to LenderAdministrative Agent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Lenders (or Agent on behalf of Lenders) making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the release and/or termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, other than liens and security interests permitted under Section 9.8 hereof, duly authorized, executed and delivered by it or each of themdelivered, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officestatements;
(b) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has valid perfected first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) Agent shall have received the CIBC Access Agreement executed and delivered by CIBC;
(d) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authorities;
(ce) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of LenderAgent's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender Agent to enforce the Obligations or realize upon the Collateral;
(df) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which which, in each case case, shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(eg) Lender Agent shall have received an agreement in favor of Lenders and Agent from Commercial Account Purchaser acknowledging the first priority security interest of Agent, for the ratable benefit of Lenders, in monies due and to become due to Borrower (including, without limitation, credits and reserves) under the Commercial Account Agreement as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, and agreeing to transfer all such amounts to the Blocked Accounts (the "Commercial Account Acknowledgement");
(h) Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgments by lessors, mortgagees and warehousemen of Agent's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Agent's access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(fi) Lender Borrower shall have established the Blocked Accounts and Agent shall have received, in form and substance satisfactory to LenderAgent, all necessary agreements with the depository banks and Borrower with respect to the such Blocked Accounts as Lender Agent may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(gj) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreementsevidence, in form and substance satisfactory to LenderAgent, that all local banks used by Borrower for collections from retail store locations have been irrevocably authorized and certificates of insurance policies and/or endorsements naming Lender as loss payeedirected in writing to remit such amounts to the Blocked Accounts;
(ik) Lender Agent shall have received environmental audits of Borrower's Real Property covered Credit Card Acknowledgments in each case, duly authorized, executed and delivered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, Credit Card Issuers and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problemsCredit Card Processors;
(jl) Lender Agent shall have received a duly executed Private Label Card Agreement and Commercial Account Agreement, the terms and provisions of which shall be satisfactory to Agent;
(m) Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, a valid and effective title insurance policy issued by a company and agent acceptable to Lender Agent (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender Agent for protection of its Lenders' interests;
(kn) the Excess Availability as determined by Agent, as of the date hereof, shall not be less than $20,000,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(o) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent and each Lender as loss payee with respect to the Collateral;
(p) Agent shall have received Commitments from Lenders (including Congress) or Assignees of Congress in an aggregate amount equal to the Maximum Credit;
(q) Agent shall have received, in form and substance satisfactory to LenderAgent, such the opinion letters letter of counsel counsel(s) to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and the security interests and liens of Agent with respect to the Collateral and such other matters as Lender Agent may request; and
(lr) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower Borrowers and Guarantor and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each ObligorGuarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any ObligorGuarantor, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor Guarantor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three five (35) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each other Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and such Borrower or any other Obligor, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any other Obligor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower and each Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or such Guarantor, as is set forth herein and such document as shall set forth the organizational identification number of such Borrower, or such Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower any Obligor since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons Persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens Liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, subject to the provisions of SECTION 9.24 hereof, Collateral Access Agreements by owners and lessors of leased premises of each Borrower and by processors and warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 15,000,000 after giving effect to the initial Loans and Letter of Credit Accommodations made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderhereunder and the payment of all fees and expenses in connection with the transactions contemplated hereby;
(g) Agent shall have received, in form and substance satisfactory to Agent, (i) a Deposit Account Control Agreement by and among Agent, Parent and Fleet National Bank, and Deposit Account Control Agreements among Agent, Kirkland's and Bank of America, N.A., AmSouth Bank, US Bank, Firth Thxxx Xxxx, Regions Bank, National City Bank, and Wachovia, respectively, in each case duly authorized, executed and delivered by such bank and such Obligor, (ii) evidence of Borrowers' delivery of a Payment Direction Letter to each other bank at which any Borrower maintains a deposit account and (ii) evidence of the Borrowers' delivery of all Cash Management Agreements;
(h) Lender Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in and Lien upon all of the Collateral;
(i) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation of each Obligor, the jurisdiction of the chief executive office of each Obligor and all jurisdictions in which assets of each Obligor is located, which search results shall be in form and substance satisfactory to Agent;
(j) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(k) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as lender's loss payeepayee and additional insured;
(il) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request; and;
(lm) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to Lender.Agent;
(n) Agent shall have received, in form and substance acceptable to the Agent, (i) credit card processor agreements from each of the Borrowers' Credit Card Processors and/or Credit Card Issuers;
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower DIP Anchor and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorDIP Anchor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower DIP Anchor (or any Obligorits predecessors), as debtor and debtor, (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording with the appropriate Governmental Authority and (iii) in the appropriate government office;
case of the Existing Letters of Credit, (bA) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be in form and substance reasonably satisfactory to Lender, and Lender obligations under such letters of credit shall have received all information and copies been secured by a pledge of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested cash collateral by Borrower in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any favor of the other Financing Agreements issuer of such Existing Letter of Credit pursuant to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have receivedwritten agreement, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary Agent or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements (B) replaced by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or pursuant to be issued in connection with the initial transactions hereunderSection 2.2 hereof;
(hb) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, a valid release agreement and effective title insurance policy issued all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination and cancellation by a company the Senior Note Trustee and agent acceptable to Lender (i) insuring the priority, amount and sufficiency Senior Note Holders of the MortgagesSenior Notes and of all financing arrangements of the Senior Note Trustee and the Senior Note Holders with DIP Anchor and Consumers U.S., (ii) insuring against matters that would be disclosed Inc. under the Senior Note Indenture, and the termination and release of any interest in and to any assets and properties of DIP Anchor, duly authorized, executed and delivered by surveys and (iii) containing any legally available endorsements, assurances the Senior Note Trustee or affirmative coverage reasonably requested by Lender for protection of its intereststhe Senior Note Holders;
(kc) Lender Agent shall have receivedreceived a copy of the Confirmation Order as duly entered by the Bankruptcy Court and entered on the docket of the Clerk of the Bankruptcy Court in the Chapter 11 Case certified by the Clerk of the Bankruptcy Court, following due notice to such creditors and other parties-in-interest as required by the Bankruptcy Court;
(d) Agent shall have received evidence, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect that prior to the Financing Agreements and such other matters as Lender may request; and
date hereof or concurrently herewith, (li) the other Financing Agreements Effective Date shall have occurred, the Confirmation Order shall be final, valid, subsisting and continuing, and all instruments and documents hereunder and thereunder conditions precedent to the effectiveness of the Plan of Reorganization shall have been duly executed fulfilled, or validly waived, including, without limitation, the execution, delivery and delivered performance of all of the conditions thereof other than conditions that have been validly waived (but not including conditions consisting of the effectiveness of this Agreement), and (ii) no motion, action or proceeding shall be pending or filed by any creditor or other party-in-interest to Lenderthe Chapter 11 Case which could adversely affect the Plan of Reorganization, the consummation of the Plan of Reorganization, the business or operations of Borrower or the transactions contemplated by the Financing Agreements, as determined by Agent in form and substance satisfactory to Lender.good faith;
Appears in 1 contract
Samples: Loan and Security Agreement (Anchor Glass Container Corp /New)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 600,000.00 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Lender shall have received, in form and substance satisfactory to Lender, the Investment Property Control Agreement pertaining to Money Market Account 2000011121879 (or Lender's Affiliate shall control such money market account);
(h) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral;
(i) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation or organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Streicher Mobile Fueling Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have receivedreceived evidence (including, without limitation, any subordinations or releases of any other charges, liens or security interests in the Collateral required by Lender), in form and substance satisfactory to Lender, all releasesthat Lender has valid perfected (to the extent applicable) and first priority security interests in, terminations and such charges and liens upon, the Collateral and any other documents as Lender may request property which is intended to evidence and effectuate be security for the termination by Obligations or the Existing Lenders to Borrower liability of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests, charges and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of either Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of either Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in in, and charges and liens upon upon, the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in, and liens and charges upon, the Collateral, waivers by such persons of any security interests, liens, charges or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender Borrowers shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than in an amount equal to at least equal to the Canadian Dollar Amount equivalent to US $10,000,000 500,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hg) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kh) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops the Obligors with respect to the Financing Agreements and such other matters as Lender may request; and;
(li) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender; and
(j) all conditions precedent to the making of loans under the US Financing Agreements shall have been satisfied.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.event
Appears in 1 contract
Samples: Loan and Security Agreement (Digital Lightwave Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower and each other Company of their respective financing arrangements with Borrower and the other Companies and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, assets business or prospects of Borrower or any Obligor since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral and the other collateral pledged by the other Companies as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three seven (37) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kg) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrower and Cottontops the Other Companies with respect to the Financing Agreements and such other matters as Lender may request; and
(lh) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Musicland Stores Corp)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received the Assignment Agreement, in form and substance satisfactory to Lender, duly authorized, executed and delivered by Existing Lender, and Borrowers, and the acknowledgment thereof by Borrowers, in form and substance satisfactory to Lender;
(b) Lender shall have received fully executed originals of each of the Existing Agreements;
(c) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations assignments and such other documents as Lender may request to evidence and effectuate the termination assignment by the Existing Lenders to Borrower Lender of their respective its financing arrangements with Borrower Borrowers and the termination and release assignment by it or them, as the case may be, of any interest in and to any assets and properties of Borrower Borrowers and each Obligor, duly authorized, executed and delivered by it or each of themit, including, but not limited to, (i) UCC termination statements assignments for all UCC financing statements previously filed by it or any of them or their its predecessors, as secured party and Borrower or any Obligoreach Borrower, as debtor debtor;
(d) Lender shall have received evidence, in form and (ii) satisfactions substance satisfactory to Lender, that Lender has valid perfected and discharges first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(be) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cf) no material adverse change shall have occurred in the assetsassets or business of Borrowers, business or prospects of Borrower taken as a whole, since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or Obligor in any Obligor material respect to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(dg) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may reasonably require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through a date not more than three (3) Business Days prior to the date of closing hereof (or such earlier date which is acceptable to Lender) and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be reasonably satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(eh) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may reasonably deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners lessors, mortgagees, processors, subcontractors and lessors of leased premises of Borrower and warehousemen used by warehouses at which Collateral is locatedeach Borrower;
(fi) Borrowers shall have established the Blocked Accounts and Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower Borrowers with respect to the such Blocked Accounts as Lender may require pursuant to Section 6.3 10.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerBorrowers;
(gj) Lender shall have received evidence, in form and substance satisfactory to Lender, that all local banks used by Borrowers for collections from retail store locations have been irrevocably authorized and directed in writing to remit such amounts only to the Blocked Accounts;
(k) Lender shall have received Credit Card Acknowledgments in each case, duly authorized, executed and delivered by the Credit Card Issuers and Credit Card Processors;
(l) the Excess Availability as determined by Lender in good faith, shall be not less than $5,000,000 as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and initial Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hm) Lender shall have received, in form and substance satisfactory to Lender, an amendment or waiver by Allfirst Bank modifying or waiving the financial covenant set forth in the Hanover Facility Loan Agreements, duly authorized, executed and delivered by Allfirst Bank and xXXxX*s Distribution Company;
(n) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(ko) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel counsel(s) to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and the security interests and liens of Lender with respect to the Collateral and such other matters as Lender may reasonably request; and
(lp) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Credit Agreement (Delias Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, :
(i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and debtor; and
(ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended as security for the Obligations or the liability of any Obligor in respect thereto, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
; (d) Lender shall have completed a field review of received the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have receivedWareforce Loan Agreement duly executed by Wareforce, in form and substance satisfactory to Lender, Lender and all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender conditions precedent set forth therein shall have received, been satisfied in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm a manner acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 4,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements by and among Lender, Borrower and each bank where Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower (or Lender shall be the bank's customer with respect to such deposit account, as Lender may specify);
(h) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral;
(i) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation or organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(l) Lender shall have received, in form and substance satisfactory to Lender a guarantee of the Obligations from Guarantor in an initial amount up to $2,000,000;
(m) Loans shall be subject to Reserves in the amount of $400,000;
(n) Lender shall have received in form and substance satisfactory to Lender such assignments of existing notes receivable as Lender may request; and
(lo) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may reasonably request to evidence and effectuate the termination by BABC and the Existing Lenders to Borrower other financial institutions who are lenders under the BABC DIP Facility of their respective such financing arrangements with Borrower Borrowers and Guarantors (and any financing arrangements in effect prior to the commencement of the Chapter 11 Cases) and the termination and release by it or them, as the case may be, them and BABC of any interest in and to any assets and properties of Borrower Borrowers and each ObligorGuarantors, duly authorized, executed and delivered by it or each of themthem or on its or their behalf, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessorsBABC, as secured party and any Borrower or any ObligorGuarantor, as debtor debtors;
(b) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that Agent, for itself and the ratable benefit of Lenders, has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Guarantor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) Agent shall have received, in form and substance reasonably satisfactory to Agent, unlimited guarantees of payment of the Obligations by each Guarantor in favor of Agent and Lenders, and with respect to each Guarantor, (i) a security agreement by each such Guarantor in favor of Agent and the ratable benefit of Lenders, granting Agent, for itself and the ratable benefit of Lenders, a first priority security interest in each such Guarantor's assets, and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or LendersUCC-1 financing statements with respect thereto, in form acceptable for recording in each case duly authorized, executed and delivered by the appropriate government officeparties thereto;
(bd) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authorities;
(ce) no material adverse change act, condition or event shall exist or have occurred in the assets, business or prospects of Borrower which would have a Material Adverse Effect since February 18, 1999, the date of LenderAgent's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or businesses of Lender to enforce the Obligations or realize upon the CollateralBorrowers and Guarantors;
(df) Lender Agent shall have completed a field review of the Records books and records of Borrowers and Guarantors and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower (Borrowers including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lenderclosing, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to LenderAgent, not more than three seven (37) Business Days days prior to the date hereofhereof (or such greater number of days as is satisfactory to Agent);
(eg) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, agreements with Customs Brokers acknowledging Agent's security interests in the Collateral, waiving any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased permitting Agent access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(fh) Lender Borrowers shall have established the Concentration Accounts and Agent shall have received, in form and substance satisfactory to LenderAgent, all necessary agreements with the depository banks and Borrower Borrowers with respect to the Blocked such Concentration Accounts as Lender Agent may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerBorrowers;
(gi) Agent shall have received Credit Card Acknowledgements in each case, duly authorized, executed and delivered by the Credit Card Issuers and Credit Card Processors;
(j) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall not be not less than $10,000,000 20,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder, and after giving effect to the payment of all fees and costs of the transactions provided for herein;
(hk) Lender Agent shall have received a Borrowing Base Certificate setting forth the Loans available to Borrowers as of the date hereof as completed in a manner satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(l) Agent shall have received evidence of insurance and loss payee endorsements required hereunder (which will not include Agent as loss payee with respect to insurance on the Funding Escrow Properties) and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(im) Lender no court of competent jurisdiction shall have issued any injunction, restraining order or other order which prohibits the consummation of the transactions described in the Financing Agreements, and no governmental or other action or proceeding shall have been threatened or commenced, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the Financing Agreements or which would otherwise have a Material Adverse Effect;
(n) Agent shall have received environmental audits a certified copy of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to LenderConfirmation Order, which shall be in form and in form, scope and methodology substance reasonably satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problemsAgent;
(jo) Lender the Confirmation Order shall have been entered, following due notice to such creditors and other parties-in-interest as required by the Bankruptcy Court and the Confirmation Order shall not be subject to any pending motion for reconsideration or any stay pending appeal and all steps to be taken on the Effective Date under the Plan shall have been taken and, concurrently with the satisfaction of the other conditions precedent set forth in this Section 4.1, the Effective Date shall have occurred;
(p) any amendments, modifications or supplements to the provisions of the Plan relating to Agent and Lenders, the rights of Agent and Lenders or the financing arrangements provided for herein (if any) shall be in form and substance satisfactory to Agent and Lenders;
(q) no motion, action or proceeding shall be pending against Borrowers or Guarantors (or their predecessors) by any creditor or other party-in-interest in the Bankruptcy Court or in any other court of competent jurisdiction which would if successful have a Material Adverse Effect;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that, concurrently with the satisfaction of the other conditions precedent set forth in this Section 4.1, the Effective Date shall have occurred;
(s) Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, a valid the opinion letter of counsel(s) to Borrower and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Guarantors with respect to the Financing Agreements and the security interests and liens of Agent with respect to the Collateral, the confirmation of the Plan, the occurrence of the Effective Date, the entry of the Confirmation Order and such other matters as Lender Agent may request; and
(lt) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Edison Brothers Stores Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance reasonably satisfactory to Lender, all releases, terminations and such other documents as Lender may reasonably request to evidence and effectuate the termination by the Existing Agent and Existing Lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower Borrowers and each Obligorany Obligor in connection with such financing arrangements, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements and terminations or PPSA financing change statements for any Canadian financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of for any mortgages, mortgages or deeds of trust or deeds to secure debt by Borrower or any Obligor filed in favor of such Existing Lender Agent or Lenders, in form acceptable for recording in the appropriate government officeExisting Lenders or their predecessors;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authorities;
(cd) no material adverse change shall have occurred in the assets, assets or business or prospects of Borrower Borrowers since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be reasonably satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(ef) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of the Subsidiaries of Play By Play incorporated under the laws of any State of the United States of America and stock certificates representing at least sixty-five (65%) percent of the issued and outstanding shares of Capital Stock of the Foreign Subsidiaries, in each case together with stock powers duly executed in blank with respect thereto;
(g) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners lessors, mortgagees, warehousemen, consignees, processors, customs brokers and lessors of leased premises of Borrower and agreements from sales agents used by warehouses at which Collateral is locatedany Borrower;
(fh) the aggregate amount of the Excess Availability of Borrowers shall be not less than $3,000,000, as of the date hereof, after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(i) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with a valid and effective title insurance policy issued by a company and agent reasonably acceptable to Lender (i) insuring the depository banks priority, amount and Borrower sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any endorsements, assurances or affirmative coverage requested by Lender for protection of its interests;
(j) Lender shall have received environmental audits with respect to the Real Property subject to the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming Ace is in compliance with all material applicable Environmental Laws with respect to such Real Property and the absence of any material environmental problems with respect to such Real Property;
(k) Lender shall have received, in form and substance satisfactory to Lender, (i) current or ALTA-Standard survey certified to Lender and (ii) evidence of legal occupancy and municipal compliance;
(l) Lender shall have received, in form and substance satisfactory to Lender, an agreement with each of the depository banks at which bank accounts and/or lockboxes are maintained establishing such Blocked Accounts Account as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(gm) Lender shall have received, in form and substance satisfactory to Lender, an Intercreditor and Subordination Agreement duly authorized, executed and delivered by each of the Excess Availability holders of the Subordinated Notes, the Subordinated Note Agent and acknowledged by Borrower, providing for, INTER, ALIA, the subordination in right of payment of indebtedness of Play By Play to each of the holders of the Subordinated Notes to the prior indefeasible payment and satisfaction in full of the Obligations and for such parties' relative rights with respect to the assets and properties of Play By Play and related matters;
(n) Lender shall have received, in form and substance satisfactory to Lender, (i) a Settlement Agreement by and among Play By Play, Ace and the Seller and any other necessary parties thereto, (ii) all releases, terminations and such other documents as determined Lender may reasonably request to evidence and effectuate the termination and release by Lender in good faithit or them, as the case may be, of the date hereof, shall be not less than $10,000,000 after giving effect any interest in and to the initial Loans made or to be made hereunder any assets and Letter properties of Credit Accommodations issued or to be issued Borrowers and any Obligor in connection with the initial transactions hereunderSubordinated Seller Note, duly authorized, executed and delivered by it or each of them, including, but not limited to UCC termination statements for all UCC financing statements and terminations or PPSA financing change statements for any Canadian financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or Obligor, as debtor and satisfactions for any mortgages or deeds of trust filed in favor of Seller or their predecessors and (iii) a copy of the New Subordinated Seller Note duly executed and delivered by Play By Play;
(ho) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(ip) Lender shall have received, Licensor Agreements, in form and substance satisfactory to Lender, from the licensors listed on Schedule 4.1(p), duly authorized, executed and delivered by such parties and Play By Play;
(q) Lender shall have received environmental audits and reviewed UCC and PPSA search results for all jurisdictions in which assets of Borrower's Real Property covered by Borrowers are located in the Mortgages conducted by an independent environmental engineering firm acceptable to LenderUnited States and Canada, which search results shall be in a form and in form, scope and methodology substance satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(jr) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable evidence that the existing events of default with respect to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances Subordinated Notes have been waived or affirmative coverage reasonably requested by Lender for protection of its interestscured;
(ks) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel counsel(s) to Borrower, Holdings Borrowers and Cottontops Guarantor with respect to the Financing Agreements and the security interests and liens of Lender with respect to the Collateral and such other matters as Lender may requestrequest and, including opinion letters of counsel to Play By Play and its Subsidiaries in Spain, the United Kingdom, Hong Kong and the Cayman Islands with respect to the effectiveness of the pledge of the Capital Stock of certain of its Subsidiaries to Lender; and
(lt) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Play by Play Toys & Novelties Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders to Borrower Prudential Purchasers of their respective financing arrangements with Borrower Borrowers and Guarantors and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each ObligorGuarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party party, and any Borrower or any ObligorGuarantor, as debtor and debtor, (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor Guarantor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording with the appropriate Governmental Authority, and (iii) its or their consent to the amendment and restatement of the Intercreditor Agreement (as defined in the appropriate government officeExisting Loan Agreement) substantially in the form of the Collateral Agency Agreement;
(b) all requisite corporate and limited liability company action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate and limited liability company action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation or certificate of formation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation or organization);
(c) no material adverse change shall have occurred in the assets, assets or business or prospects of any Borrower since February 18, 1999, the date of Lender's Agent’s latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent, Collateral Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof[Intentionally Omitted];
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or reasonably desirable in order to permit, protect and perfect its the Collateral Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of each Borrower and by processors and warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the aggregate Excess Availability of Borrowers as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 7,500,000 after giving effect to the redemptions permitted under Sections 9.11(f) and (g) hereof, the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderhereunder and the issuance of the Senior Secured Notes;
(g) Agent shall have received, in form and substance satisfactory to Agent, (i) Deposit Account Control Agreements by and among Collateral Agent, each Borrower and Guarantor, as the case may be, and each bank where such Borrower or Guarantor has a deposit account, in each case, duly authorized, executed and delivered by such bank and such Borrower or Guarantor, as the case may be (or Collateral Agent shall be the bank’s customer with respect to such deposit account as Collateral Agent may specify) and (ii) Investment Property Control Agreements by and among Collateral Agent, each Borrower and Guarantor, as the case may be, and each intermediary where such Borrower or Guarantor has a securities account or commodities account, in each case duly authorized, executed and delivered by such intermediary and such Borrower or Guarantor, as the case may be (or Collateral Agent shall be the intermediary’s customer with respect to such securities or commodities account as Collateral Agent may specify);
(h) Lender Agent shall have received, in form and substance satisfactory to Agent, the Intercreditor Agreement, duly authorized, executed and delivered by Trustee, as acknowledged and agreed to by Borrowers and Guarantors providing for, inter alia, the subordination of all security interests and liens granted to or for the benefit of Trustee in the Revolving Loan Collateral and related matters;
(i) Agent shall have received evidence satisfactory to it that Group has received gross proceeds from the issuance of the Senior Secured Notes in an amount of not less than $150,000,000, and the Note Purchase Documents to be entered into on or prior to the date hereof shall be in form and substance satisfactory to Agent;
(j) Agent shall have received evidence, in form and substance satisfactory to Agent, that Collateral Agent has a valid and perfected security interest in all of the Collateral, which security interest shall be a first priority security interest in the Revolving Loan Collateral and a second priority security interest in the Senior Note Collateral;
(k) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Recycling, Listerhill, Warehousing, Recycling Texas and Recycling West, the jurisdiction of the chief executive office of Recycling, Listerhill, Warehousing, Recycling Texas and Recycling West and all jurisdictions in which assets of Recycling, Listerhill, Warehousing, Recycling Texas and Recycling West are located, which search results shall be in form and substance satisfactory to Agent;
(l) Agent shall have received, in form and substance satisfactory to Agent, (i) a valid and effective endorsement to the title insurance policy issued by a company and agent acceptable to Agent: (A) insuring the priority, amount and sufficiency of the Alabama Mortgage, (B) insuring against matters that would be disclosed by surveys and (C) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of the Collateral Agent’s interests, (ii) a last owner and lien search issued by a company and agent acceptable to Agent, verifying that (A) the Real Property located at 0000 Xxxx Xxxxx Xxxxxx, Dallas, Texas is owned by Recycling and (B) there are no prohibitions against the filing of the Texas Deed of Trust, and (iii) an order from the Department of Revenue of the State of Alabama authorizing the filing of the Texas Deed of Trust without the requirement to pay privilege tax on advances and readvances;
(m) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Collateral Agent as loss payee;
(in) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements Agreements, the Note Purchase Documents and such other matters as Agent may reasonably request;
(o) Agent shall have received, in form and substance satisfactory to Agent, an Assignment and Acceptance (as defined in the Existing Loan Agreement) between Congress and each Existing Lender may requestthat is not a Lender hereunder, duly authorized, executed and delivered by Congress and such Existing Lender, which provides, among other things, for the assignment to Congress of all of such Existing Lender’s right, title and interest under the Financing Agreements (as defined in the Existing Loan Agreement);
(p) Existing Agent shall have received a payment from or on behalf of Borrowers, in immediately available funds, in an amount necessary to (i) fully pay the outstanding principal amount of the Term Loan (as defined in the Existing Loan Agreement) and all accrued and unpaid interest thereon, and (ii) to fully pay all of the other Obligations (as defined in the Existing Loan Agreement) owing to each Existing Lender that is not a Lender hereunder (immediately before giving effect to the assignment of such Obligations by each such Existing Lender to Congress on the date hereof); and
(lq) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Samples: Loan Agreement (Listerhill Total Maintenance Center LLC)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
: (a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements; without limiting the generality of the foregoing, Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower either Borrower, any affiliate or former affiliate of Borrowers, or any Obligor, as debtor debtor, if applicable, and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower either Borrower, any affiliate or former affiliate of Borrowers, or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
; (b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
; (c) no material adverse change shall have occurred in the assets, business or prospects of any Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
; (d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
; (e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.Collateral
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have receivedreceived evidence, in form and substance satisfactory to Lender, all releases, terminations that Lender has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral and any other property which is intended to any assets and properties be security for the Obligations or the liability of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgements by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have receivedreceived evidence of the closing of the acquisition of the stock of Borrower directly or indirectly by Statia Terminals Group N.V., including, without limitation, evidence that Statia Terminals International N.V. and Statia Terminals Canada, Incorporated shall have completed the issuance of the $135,000,000 11 3/4% First Mortgage Notes and received not less than $35,000,000 in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts aggregate as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borroweran equity capital contribution;
(g) the Borrower shall have Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than in an amount equal to at least $10,000,000 2,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and
(lj) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Seven Seas Steamship Co Nv)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender All of the DIP Financing Documents shall have been executed in form and substance satisfactory to Agents by each of the signatories thereto and accepted by Agents, and each Obligor shall be in compliance with all of the terms thereof, and all representations and warranties contained therein shall be true and correct in all material respects;
(b) The Interim Financing Order shall have been entered, shall be in full force and effect and shall not have been vacated, rescinded, reversed, modified, amended or stayed in any respect (and, if the Interim Financing Order is the subject of a pending appeal in any respect, neither the making of an extension of credit nor the performance of any obligation of any party hereunder or under any of the other DIP Financing Documents shall be the subject of a presently effective stay pending appeal);
(c) All fees and expenses required to be paid by Borrowers hereunder on the Closing Date shall have been paid in full;
(d) Agents shall have received satisfactory proof of insurance by Obligors, in accordance with the terms of this Agreement, together with loss payable endorsements in form and substance satisfactory to Agents, naming Collateral Agent as loss payee with respect to each policy and certified copies of each Obligor's liability insurance policies, together with endorsements naming Collateral Agent as an additional insured;
(e) Agents shall have received a Borrowing Base Certificate setting forth the Revolving Loans available to Borrowers as of the date hereof as completed in a manner satisfactory to Agents and duly authorized, executed and delivered on behalf of Borrowers;
(f) all of the "first day orders" presented to the Court at or about the time of the commencement of the Chapter 11 Cases (including orders with respect to maintenance of Borrowers' cash management system and retention of Professional Persons) shall be satisfactory in form and substance to Agents;
(g) Agents shall have received and found satisfactory in all respects the Initial Projections; and
(h) Agents and Lenders shall have received, in form and substance satisfactory to Lender, all releases, terminations Agents and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements matters set forth on EXHIBIT J attached hereto and such other matters as Lender Agents and Lenders may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender;.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have receivedreceived evidence, in form and substance satisfactory to Lender, all releases, terminations that Lender has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral and any other property which is intended to any assets and properties be security for the Obligations or the liability of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(g) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(h) Borrower shall have established the Blocked Accounts and Payment Account and Lender shall have received, in form and substance satisfactory to Lender, all agreements with the depository banks and Borrower with respect to such Blocked Accounts and Payment Account as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lenderreceived, in form and in form, scope and methodology substance satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws agreements from Borrower's customs agents, freight forwarders, documentation agents, and (ii) the absence of any material environmental problemsdomestic common carriers as Lender shall require;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy with respect to the Mortgage issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the MortgagesMortgage, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsementsendorsement, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received satisfactory evidence that Xxxx Xxxxxxx shall have made a subordinated loan to Borrower in the amount of $1,000,000 (the "Subordinated Debt") on terms and conditions acceptable to Lender. Lender shall have received, in form and substance satisfactory to Lender, a subordination agreement between Lender and Xxxx Xxxxxxx as acknowledged and agreed to by Borrower, providing for such parties' relative rights and priorities with respect to the Borrower's obligations under this Agreement and the Subordinated Debt;
(l) Borrower shall have Excess Availability as determined by Lender, as of the date hereof, in amount not less than $3,800,000 (taking into account the Trade Reserve) after giving effect to (i) the initial Loans made or to be made, (ii) Letter of Credit Accommodations issued or to be issued in connection with the initial transaction hereunder, (iii) the incurrence of the Subordinated Debt and (iv) payment of any and all fees and expenses due on the date hereof in connection with the transactions contemplated by this Agreement;
(m) Lender shall have received, in form and substance satisfactory to Lender, (i) a limited guaranty of Term Loan B executed by Xxxx Xxxxxxx in favor of Lender and (ii) guarantees against fraud and/or misrepresentations executed by Xxxx Xxxxxxx and Xxx Xxxxx in favor of Lender;
(n) Lender shall be satisfied that Borrower shall have established a system of monitoring its Collateral in a manner consistent with Section 7.1;
(o) Lender shall have received, in form and substance satisfactory to Lender, an Assignment and Assumption Agreement executed by First Union National Bank and Borrower and such other documents as Lender may reasonably request to evidence and effectuate the assignment of certain loan documents and the assumption of debt with respect to the financing arrangements between First Union National Bank and Borrower existing prior to the date hereof;
(p) Lender shall have sold participation interests or entered into co-lending arrangements, in either case on terms acceptable to, and with participants or lenders acceptable to, Lender in Lender's sole discretion, for portions of the Maximum Credit aggregating at least $10,000,000;
(q) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings terminations and Cottontops with respect to the Financing Agreements releases by First Union National Bank and such other matters Persons as Lender may requestshall determine to evidence and effectuate the termination and release of security interests in any assets and properties of Borrower; and
(lr) the other Financing Agreements and all instruments and documents hereunder and thereunder (including those listed on Exhibit 4.1) shall have been duly executed and and/or delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate that the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, Purchase Agreements have been duly authorized, executed and delivered by it and to the appropriate parties thereto and the transactions contemplated under the terms of the Purchase Agreements have been consummated prior to or each contemporaneously with the execution of themthis Agreement;
(b) Lender shall have received, in form and substance satisfactory to Lender, a pro-forma balance sheet of Borrower reflecting the initial transactions contemplated hereunder, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed the consummation of the acquisition of the Purchased Assets by it or any of them or their predecessors, as secured party Borrower from Seller and Borrower or any Obligor, as debtor the other transactions contemplated by the Purchase Agreements and (ii) satisfactions the Loans and discharges Letter of any mortgagesCredit Accommodations provided by Lender to Borrower on the date hereof and the use of the proceeds of the initial Loans as provided herein, deeds accompanied by a certificate, dated as of trust or deeds to secure debt by the date hereof, of the Vice President of Borrower or any Obligor in favor stating that such pro-forma balance sheet represents the reasonable, good faith opinion of such Existing officer as to the subject matter thereof as of the date of such certificate;
(c) Lender or Lendersshall have received, in form acceptable and substance satisfactory to Lender, the agreement of the Seller consenting to the collateral assignment by Borrower to Lender of all of Borrower's rights and remedies and claims for recording in damages or other relief under the appropriate government officePurchase Agreements and granting Lender such other rights as Lender may require, duly authorized, executed and delivered by Seller;
(bd) Lender shall have received, in form and substance reasonably satisfactory to Lender, the intercreditor and subordination agreement between Lender and Seller, as acknowledged and agreed to by Borrower, providing for, among other things, the terms of the subordination in right of payment of all amounts at any time owing by Borrower to Seller to the indefeasible payment and satisfaction of the Obligations and the subordination of the security interests of Seller in any of the assets and properties of Borrower to the security interests of Lender in the assets and properties of Borrower, duly authorized, executed and delivered by Seller;
(e) Lender shall have received, in form and substance satisfactory to Lender, evidence that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(f) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cg) no material adverse change shall have occurred in the assets, assets or business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(dh) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(ei) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgements by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(fj) Borrower shall have established the Blocked Accounts and Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the such Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(gk) Lender shall have received evidence, in form and substance satisfactory to Lender, that Borrower has (i) directed the Excess Availability banks at which Borrower maintains deposit accounts for the initial receipt of cash, checks and other items from Borrower's retail store locations to transfer all immediately available funds deposited in such bank only to the Blocked Accounts as determined required pursuant to Section 6.3 hereof or as otherwise directed by Lender in good faith, as and (ii) notified such banks of the date hereof, shall be not less than $10,000,000 after giving effect to security interests of Lender in such funds and the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderother Collateral;
(hl) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payeepayee with respect to the Collateral ;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(jm) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable the opinion letter of counsel(s) to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Purchase Agreements, the Financing Agreements and the security interests and liens of Lender with respect to the Collateral and such other matters as Lender may request; and;
(ln) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance reasonably satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Poindexter J B & Co Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) except as previously disclosed to Lender in writing and accepted by Lender, no material adverse change shall have occurred in the assets, business or prospects of any Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(ef) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;
(f) Lender shall have received, in form remedies and substance satisfactory to Lender, all necessary agreements otherwise deal with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerCollateral;
(g) the Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 18,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits evidence of Borrower's Real Property covered the receipt by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, Company of at least $21,800,000 in proceeds from the issuance of equity securities on terms and in form, scope and methodology conditions satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have receivedreceived evidence, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency that all obligations of the Mortgages, (ii) insuring against matters that would be disclosed by surveys Company and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its intereststhe other Borrowers to Ableco Finance LLC have been paid and satisfied in full;
(k) PictureTel UK Limited shall execute and deliver to Lender a deed of debenture, share mortgage and such other documents and instruments as may be necessary, in the Lender's discretion, to ensure that Lender has valid and enforceable fixed and floating charges on substantially all of the assets thereof in the United Kingdom;
(l) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Obligors with respect to the Financing Agreements and such other matters as Lender may request; and
(lm) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received, in form and substance satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Lender for protection of its interests;
(c) Lender shall have received a Borrowing Base Certificate setting forth the Loans available to Borrower as of the date hereof as completed in a manner satisfactory to Lender and duly authorized, executed and delivered on behalf of Borrower;
(d) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $2,000,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(e) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(f) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cg) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(dh) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three five (35) Business Days prior to the date hereof;
(ei) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgements by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hj) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans Loans, and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, (i) evidence that Lender has valid, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations, subject only to Permitted Liens, (ii) all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders others who have provided financial accommodations to any Borrower of their respective financing arrangements with each such Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (iA) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any ObligorBorrower, as debtor and (iiB) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor of such Existing Lender or Lenders, others in form acceptable for recording in the appropriate government office;office and (iii) evidence that the Purchase Agreements have been duly executed and delivered by and to the appropriate parties thereto and the transactions contemplated under the terms of the Purchase Agreements have been consummated prior to or contemporaneously with the execution of this Agreement.
(b) all All requisite corporate action and other actions and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and other actions and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;.
(c) no No material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;.
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans and Term Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;Closing Date.
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by counter parties to licensing agreements and other Manufacturing Contracts, without limitationlessors, mortgagees and warehousemen of Lender's liens and security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;remedies and otherwise deal with the Collateral.
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks (i) such opinion letters of counsel to Borrower and Borrower counsel to Lender with respect to the Blocked Accounts Purchase Agreements, the Financing Agreements, and the security interests and liens of Lender in the Collateral as Lender may require pursuant request and as to Section 6.3 hereofsuch other matters as Lender may request.
(g) The other Financing Agreements requested or submitted by Lender from or to Borrower and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
(h) Lender shall have received, in form and substance satisfactory to Lender (i) all agreements with respect to (i) the Blocked Accounts and (ii)all investment property and all other deposit accounts of Borrower as Lender may require, duly authorized, executed and delivered by such depository banks Borrower and Borrower;the appropriate depository, financial or other applicable institution.
(gi) the Excess Availability as determined by Lender in good faithand Suppressed Availability, as of the date hereofClosing Date, shall not be not less than $10,000,000 2,000,000 and $500,000 respectively(included within such Excess Availability), after giving the effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued provided in connection with the initial transactions hereunder;.
(hj) All indebtedness owing by (i) any Borrower to any Affiliate, (ii) by any guarantor of the Obligations to Borrower, (iii) by Borrower to any stockholder, officer or director of Borrower whether of not on Affiliate of Borrower, (iv) by a Borrower to any other Borrower or (v) by any Affiliate of Borrower to Borrower, shall have been fully subordinated to the Obligations to Lenders satisfaction.
(k) Lender shall have received, in form and substance satisfactory to Lender, (i) a pro forma and market value balance sheet of each Borrower, reflecting the initial transactions contemplated hereunder, including, but not limited to, (A) the Loans and Letter Of Credit Accommodations to be provided by Lender to Borrowers, (B) the use of the proceeds of the initial Loans as provided herein and (C) the consummation of the acquisition of the Purchased Stock by Borrower from Seller and the other transactions contemplated by the Purchase Agreements and (ii) a projection and forecast of each Borrower’s cash flow for its current and three (3) succeeding fiscal years all accompanied by a certificate, dated as of the Closing Date, of the chief executive officer and chief financial officer of each Borrower, stating that such pro-forma balance sheet, market value balance sheet and projection of cash flow, represents the reasonable, good faith opinion of such officers as to the subject matter thereof as of the date of such certificate and as to such other matters as Lender may request.
(l) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;, all of which insurance shall be in amounts, for periods, with coverage and otherwise satisfactory to Lender, in form and substance, including policies covering business and environmental risk with respect to the Collateral.
(im) Lender shall have received a pledge in form and substance satisfactory to Lender of all of the Capital Stock of each Borrower.
(n) Lender shall have received assignments of all Material Contracts, leases, rent proceeds from leases, distribution rights, permits, Licenses, Manufacturing Contracts, and other Intellectual Property and all consents and agreements of counter parties or other third parties with respect thereof, as Lender shall have required, all in form and substance satisfactory to Lender.
(o) All fees, costs and expenses owing to Lender, including the fees and disbursements of Lender’s counsel shall have been paid, concurrently with the execution hereof.
(p) Borrower shall have delivered to Lender, at its expense, an environmental audits audit of Borrower's the Ashton Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, Lender and in form, scope and methodology satisfactory to Lender, Lender confirming that (i) Borrower and Seller is each in compliance with all Environmental Laws, in all material applicable Environmental Laws respects and (ii) the absence ii)there is no material potential or actual liability of Borrower for any material remedial action with respect to any environmental problems;condition or any other significant environmental problem.
(jq) Lender shall have receivedreceived evidence of payments or certificates, to its satisfaction that all Federal, Commonwealth, British, municipal and other taxes or charges of any Governmental Agency owing or claimed owing by Borrower (directly or as a transferee of the assets of the Company) have been paid or adequate provision for the payment thereof, including payment plans, to Lender’s satisfaction, has been made.
(r) Borrower shall be in full compliance with the financial covenants contained in Sections 9.14, 9.15, 9.16 and 9.17 hereof.
(s) Borrower shall have furnished evidence to Lender that all property taxes on the Real Estate Security then due have been paid, Borrower shall have executed and delivered to Lender all Real Estate Security and Lender shall have received mortgagee title policies with respect thereto in such amounts and from such insurers and with such affirmative coverage’s as Lender may request, or in Lender’s discretion title opinions from Lender’s counsel, all in form and substance reasonably satisfactory to Lender.
(t) Lender shall have received recent surveys of the Ashton Real Property prepared by a licensed engineer, satisfactory to Lender, a valid conforming to the descriptions and effective title insurance policy issued by a company showing no encroachments and agent certified to Lender and Lender shall have received appraisals for the Ashton Real Property from appraisers acceptable to Lender, addressed to Lender, all in form and substance and showing such values therefor, as shall be acceptable to Lender.
(u) The market value balance sheets of Borrowers, the certificate and the projection referred to in Section 4.1 (k) hereof shall reflect to Lender’s satisfaction that each Borrower is Solvent.
(v) Lender (i) insuring the priority, amount and sufficiency shall have received evidence of zoning of the MortgagesAshton Real Property disclosing no violation of applicable regulations, (ii) insuring against matters that would be disclosed by surveys satisfactory to Lender and (iii) containing any legally available endorsementsflood zone certificates for the Ashton Real Property, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;satisfactory to Lender.
(kw) Lender shall have received, in form and substance satisfactory to Lender, a guarantee of payment of the Obligations by each Affiliate of Borrower requested by Lender, secured by first and only liens and security interests (except for those permitted by Section 9.8(a) hereof) in each such opinion letters Person’s assets in favor of counsel to BorrowerLender, Holdings including real property, Equipment, Inventory and Cottontops with Accounts of Inyx, Inyx USA, Ltd. and Inyx Pharma, Limited, (x) With respect to the Financing Purchase Agreements and such other matters as Lender may request; andthe Purchased Stock:
(li) the other Financing The Purchase Agreements shall be satisfactory to Lender, in form and all instruments and documents hereunder and thereunder substance;
(ii) Lender shall have been duly executed and delivered to Lenderreceived, in form and substance satisfactory to Lender, evidence that the Purchase Agreements, have been duly executed and delivered by and to the appropriate parties thereto, constitute the legal, valid and binding obligations of the parties thereto and the transactions contemplated under the terms of the Purchase Agreements shall have closed and have been consummated prior to or contemporaneously with the making of the initial Loans;
(iii) Lender shall have received, in form and substance satisfactory to Lender, the agreement of the Seller consenting to the collateral assignment by Borrower to Lender of all of Borrower's rights and remedies and claims for damages, indemnification or other relief under the Purchase Agreements and granting Lender such other rights as Lender may require, duly authorized, executed and delivered by Seller;
(iv) Lender shall have received in form and substance satisfactory to Lender such opinion letters of counsel to the Seller with respect to the Purchase Agreement and the consummation of the transactions contemplated thereby and as to such other matters as Lender may request;
(v) Lender shall have received in form and substance satisfactory to Lender evidence that all payments required to be made by Borrower in connection with the Purchase Agreements have been, or concurrently with the making of the Initial Loans will be, made;
(vi) The purchase price for the Purchased Stock payable by Borrower to Seller shall not exceed $23,500,000;
(vii) No court of competent jurisdiction shall have issued any injunction, restraining order or other order which prohibits consummation of the transactions described in the Purchase Agreements and no governmental or other action or proceeding shall have been threatened or commenced, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the Purchase Agreements, no law, regulation, order, judgment or decree of any governmental authority shall exist which has or could reasonably be expected to have a Material Adverse Effect on the transactions contemplated by the Purchase Agreements and Borrower shall have obtained all consents required for the consummation of the transactions contemplated by the Purchase Agreements, in each case to Lender’s satisfaction; and
(viii) Borrower shall have acquired from Seller, pursuant to the Purchase Agreements good and marketable title to the Purchased Stock to Lender’s satisfaction free and clear of all liens, claims, charges, encumbrances, security interest and rights of third parties, except Permitted Liens.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agents and Lenders shall have received, in form and substance satisfactory to LenderAgents and Lenders, all releases, terminations and such other documents as Lender Agents and Lenders may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower Borrowers or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower Borrowers or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Agents shall have received evidence, in form and substance satisfactory to Agents and Lenders, that Collateral Agent has a valid perfected and first priority security interest in and Lien upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and Liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate and partnership action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgents, and Lender Agents shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agents may have reasonably requested in connection therewith, such documents where requested by Lender Agents or its their counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers taken as a whole since February 18, 1999, the date of Lender's Agents' latest field examination which could have a Material Adverse Effect and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is have a party or of Lender to enforce the Obligations or realize upon the CollateralMaterial Adverse Effect;
(de) Lender Agents shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agents may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to LenderLenders, not more than three (3) Business Days prior to the date hereof;
(ef) Lender Agents shall have received, in form and substance satisfactory to LenderAgents, all consentsconsents (other than consents from any equipment lessor to Borrowers), waivers, acknowledgments and other agreements from third persons which Lender Agents may deem necessary or desirable in order to permit, protect and perfect its Collateral Agent's security interests in and liens Liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Collateral Agent's security interests in the Collateral, waivers by such Persons of any security interests, liens or other claims by such Persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Agents and Lenders access to, and the right to remain on, the premises of Borrower to exercise their rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(fg) Lender Agents shall have received, in form and substance satisfactory to LenderAgents, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy policies issued by a company and agent acceptable to Lender Agents (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender Agents for protection of its their interests;
(kh) Lender Agents shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agents, and certificates of insurance policies and/or endorsements naming Collateral Agent as lender's loss payee and additional insured;
(i) Agents shall have received, in form and substance satisfactory to LenderAgents, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements matters set forth on EXHIBIT H attached hereto and such other matters as Lender Agents may request; and;
(lj) Agents shall have received a Borrowing Base Certificate setting forth the Loans available to Borrowers as of the date hereof as completed in a manner satisfactory to Agents and duly authorized, executed and delivered on behalf of Borrowers;
(k) the other Financing Agreements Agreements, including the Mortgages, and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgents, in form and substance satisfactory to LenderAgents;
(l) the Excess Availability as determined by Agents, as of the Closing Date, shall not be less than $10,000,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(m) Each landlord or owner of premises used by a Borrower shall have executed in favor of Agents a landlord waiver agreement in form and substance satisfactory to Agents and their counsels pursuant to which such landlord shall waive or subordinate any Lien it may hold with respect to any Collateral to Liens in favor of Collateral Agent, and Agents shall have received copies of all leases;
(n) From July 3, 1999, to the Closing Date, Borrowers' financial condition and results of continuing operations, taken as a whole, shall not have deviated to a degree deemed materially adverse by Agents from that set forth in the projections of Borrowers dated July 16, 1999 that were delivered by Borrowers to Agents and Lenders prior to the date hereof;
(o) Agents shall have completed (and found the results thereof to be acceptable) their customary field examinations of Borrowers, their financial records and the Collateral, during which Agents will examine and inspect, and conduct detailed tests of, Borrowers MIS, inventory accounting, accounts receivable and records thereof, accounts payable and records thereof, tax payment procedures and compliance and other matters usually covered by such field examination;
(p) Agents shall have found satisfactory the results of their inventory test counts and costing tests;
(q) All of the Subordinated Debt shall be expressly subordinate in right of payment to the prior payment and satisfaction in full of all of the Obligations, all in a manner and pursuant to such written agreements binding on the holders of such Subordinated Debt as shall be satisfactory to Agents and their counsel (with the Agents' acknowledging that the subordination terms contained in the Senior Subordinated Note Indenture with respect to the Senior Subordinated Notes are acceptable to Agents and their counsel);
(r) Agents shall have received and reviewed environmental reports, in form and substance satisfactory to Agents, and Agents shall have satisfied themselves that Borrowers are in compliance with all Environmental Laws;
(s) Agents shall have received and found satisfactory in all respects Borrowers' financial statements for the quarter and year-to-date period ending July 3, 1999;
(t) Borrowers shall have delivered to Agents and Lenders acceptable title insurance, commitments and surveys with respect to all real estate of Borrowers, which shall be in form and substance satisfactory to Agents in all respects;
(u) Borrowers shall have certified to Agents that the Senior Subordinated Note Indenture has not been amended or otherwise modified;
(v) There shall be no order or injunction or other pending litigation in which there is a reasonable possibility of a decision which could have a Material Adverse Effect;
(w) No event of default shall exist under the Bond Documents or the Senior Subordinated Notes on or prior to the Closing Date or shall result from consummations of any of the transactions contemplated by the Financing Agreements; and
(x) Agents shall have reviewed and found acceptable in all respects the Bond Documents.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations, subject only to the security interests and liens permitted herein or in the other Financing Agreements; without limiting the foregoing, Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties Collateral or other property of Borrower and each Obligorwhich is intended as security for the Obligation, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party party, and Borrower or any ObligorBorrower, as debtor debtor, and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a an update of its field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation: (i) acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral; (ii) an agreement from each charge or credit card issuer and charge or credit card sale processor with respect to each charge or credit card now accepted by owners and lessors Borrower, in which Borrower notifies such person of leased premises of Lender's security interest in the amounts due from such Person to Borrower and by warehouses irrevocably instructs such Person to pay such amounts directly to the Blocked Account, and in which such Person waives any security interest in such amounts; (iii) an agreement from each Person in possession or control of Borrower's mailing or customer lists, or any electronic or other medium of storage thereof, in which such Person agrees to deliver such list or storage medium to Lender at Lender's request; and (iv) an agreement with each Person who, on behalf of Borrower, licenses or rents Borrower's mailing or customer lists to third parties, or collects the proceeds from such licenses or rentals, in which Collateral such Person agrees to pay all amounts due to Borrower in respect of such collections directly to the Blocked Account and, upon Lender's request when an Event of Default has occurred and is located;continuing, to comply with Lender's instructions with respect to all such licenses and rentals.
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(ig) Lender shall have received environmental audits of Borrower's Real Property covered the Excess Availability, as determined by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, as of the date of the initial Loans and Letter of Credit Accommodations, shall be not less than $250,000, after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance connection with all material applicable Environmental Laws and (ii) the absence of any material environmental problemsinitial transactions hereunder;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kh) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and;
(i) Lender shall have received evidence satisfactory in form and substance to it that Xxxxxx Xxxxxx has contributed to the capital of Borrower, or otherwise converted to equity, indebtedness owed to him by Borrower in the aggregate principal amount of $1,000,000;
(j) Lender shall have received, in form and substance satisfactory to it, a subordination agreement duly executed and delivered by Xxx Xxxxxx and Xxxxxx Xxxxxx, subordinating payment of all indebtedness owed by Borrower to them to the prior payment of the Obligations;
(k) Lender shall have received the audited financial statements of Borrower for the six months ended December 30, 1995, prepared in accordance with GAAP and fairly presenting the financial position and results of operations of Borrower as at such date and for the period then ended, accompanied by the unqualified examination report thereon of BDO Xxxxxxx, LLP, and Lender shall be satisfied with the financial position and results of operations of Borrower set forth therein;
(l) Lender shall have received evidence satisfactory to it that Borrower has paid in full all amounts due from Borrower to Xxxxxxx Xxxxxx Xxxxxxxxxx pursuant to or in connection with the transactions contemplated by the Redemption Agreement dated as of April 29, 1995 by and among Borrower, Xxxxxxx Xxxxxx Xxxxxxxxxx, and Xxxxxx Xxxxxx and the Consulting Services Agreement dated as of April 29, 1995 by and between Borrower and Xxxxxxx Xxxxxx Xxxxxxxxxx;
(m) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender; and
(n) Lender shall have received such other agreements, documents, instruments, certificates and opinions as Lender may reasonable request.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Lenders (or Agent on behalf of Lenders) making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have receivedreceived evidence, in form and substance satisfactory to LenderAgent, that
(i) Borrower has validly issued and sold the Senior Notes pursuant to the Borrower Debt Offering and the transactions contemplated in connection with such offering have been consummated in compliance with all releasesapplicable laws and regulations and all necessary consents and approvals in connection therewith have been obtained and are in full force and effect, terminations (ii) the Senior Notes and all agreements, documents and instruments relating thereto have been duly authorized, executed and delivered by the parties thereto and (iii) Borrower has received from or on behalf of the holders of the Senior Notes cash or other immediately available funds in the aggregate amount of not less than approximately $132,000,000 constituting the net cash proceeds after transaction costs paid on the date hereof of the issuance of the Senior Notes pursuant to the Borrower Debt Offering, and (iv) such net cash proceeds have been deposited in the Redemption Escrow Accounts and such other documents as Lender may request to evidence amounts are held in such accounts free and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, clear of any right of setoff, lien, claim, security interest in or other encumbrance and to any assets and properties there are no restrictions, limitations or conditions on the right of Borrower and each Obligorto withdraw or use such funds, except as otherwise provided herein;
(b) Agent shall have received the Assignment Agreement, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officeparties thereto;
(bc) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of LenderAgent's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor in any material respect to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender Agent or Lenders to enforce the Obligations or realize upon the Collateral;
(de) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(ef) Lender Agent shall have received, in form and substance satisfactory to LenderAgent and Lenders, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgements by lessors, processors, mortgagees and warehousemen of the security interests of Agent in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors agreements permitting Agent access to, and the right to remain on, the premises to exercise the rights and remedies of leased premises of Borrower Agent and by warehouses at which Collateral is located;
(f) Lender shall have received, in form Lenders and substance satisfactory to Lender, all necessary agreements otherwise deal with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerCollateral;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent and Lenders, and certificates of insurance policies and/or endorsements naming Lender Agent, for itself and the ratable benefit of Lenders, as loss payee;
(ih) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the redemption of the Existing Notes, the Borrower Debt Offering, the Financing Agreements and such other matters related thereto as Lender Agent may reasonably request; and
(li) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, Agent and Lenders in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower, the results of which shall be satisfactory to Lender, not more than five (5) business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including acknowledgments by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral;
(f) Lender shall have received evidence of insurance (including business interruption and employee fidelity insurance) and loss payee or additional insured, as applicable, endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee or additional insured, as applicable;
(g) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and the security interest and liens of Lender and such other matters as Lender may request;
(h) Lender shall have received a certificate regarding the solvency of Borrower, in form and substance satisfactory to Lender, executed by the chief executive officer and the chief financial officer of Borrower;
(i) Lender shall have received a certificate regarding the sources and uses of funds in the transactions contemplated herein, in form and substance satisfactory to Lender, executed by the chief executive officer and the chief financial officer of Borrower;
(j) Lender shall have received, in form and substance satisfactory to Lender, a pledge of one hundred percent (100%) of the common stock, or other equity interests, in any Person owned by Borrower;
(k) Lender shall have received, in form and substance satisfactory to Lender, (i) an appraisal conducted by an independent appraiser acceptable to Lender that demonstrates, among other things, that the orderly liquidation value of Eligible Inventory is commensurate, as determined by Lender, with the advance rates with respect to such inventory set forth in Section 2.1(a), (ii) a desktop appraisal in form, substance and scope satisfactory to Lender and (iii) a loose diamond grade test in form, substance and scope satisfactory to Lender;
(l) the Excess Availability/Cash Amount, as determined by Lender, as of the date hereof shall be not less than $30,000,000 after giving effect to the initial Loans made or to be made and the Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder and the use of proceeds thereof;
(m) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(bn) all requisite corporate action and proceedings in connection with this Agreement and With respect to the other Financing Agreements Initial Loan, Lender shall be have received, in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days days prior to the date hereofwritten notice thereof;
(eo) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments consents as it shall have requested with respect to any contracts or other agreements that would be Excluded Property absent such consent and a list in reasonable detail of all material contracts and other material agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon that comprise the Collateral or to effectuate the provisions or purposes Excluded Property as of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors Date of leased premises of Borrower and by warehouses at which Collateral is locatedClosing;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hp) Lender shall have received evidence regarding the segregation of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender consigned goods held by Borrower as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and require in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may requestsole discretion; and
(lq) the other Financing Agreements (including, without limitation, the Blocked Account Agreement and mortgages or deeds of trust (or leasehold mortgages or leasehold deeds of trust, as applicable) for each location where Borrower owns or leases Real Property) and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower Borrowers and Guarantors and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each ObligorGuarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) the authorization by or on behalf of the Existing Lenders for Agent to file UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any ObligorGuarantor, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor Guarantor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assetsassets or businesses of Borrowers and Obligors, business or prospects of Borrower taken as a whole, since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor Borrowers and Obligors, taken as a whole, to perform its their obligations hereunder or under any of the other Financing Agreements to which it any of them is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may reasonably require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner reasonably satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, projected consolidated and consolidating financial statements of Parent and its Subsidiaries (including forecasted income statements, cash flow statements and balance sheets) all in reasonable detail for each of the fiscal years of Parent ending on or about January 2004, January 2005 and January 2006 prepared on a monthly basis for the fiscal year ending on or about January 2004 and on a quarterly basis thereafter, together with a statement of all assumptions related thereto (which shall be fair and reasonable as of the date of preparation in view of current and reasonably foreseeable business conditions) and monthly projections of availability under the Credit Facility for the period from December 2002 through and including January 2004, together with a statement of all assumptions related thereto (which shall be fair and reasonable in view of current and reasonably foreseeable business conditions), which projected financial statements and projections of availability shall be based on the reasonable, good faith opinion of Borrowers and Guarantors (it being understood that actual results may differ from those set forth in such projected financial statements);
(f) Agent shall have received, in form and substance reasonably satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 15,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account for which it is required to obtain a Deposit Account Control Agreement pursuant to Section 6.3 hereof, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be;
(i) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreementsevidence, in form and substance satisfactory to LenderAgent, and certificates that Agent has a valid perfected first priority security interest in all of insurance policies and/or endorsements naming Lender as loss payeethe Collateral;
(j) Agent shall have received (i) Lender Credit Card Acknowledgments, in each case duly authorized, executed and delivered by the Credit Card Issuers (other than American Express) and Credit Card Processors and (ii) an instruction letter with respect to the routing of proceeds of American Express credit card sales, duly authorized, executed and delivered by Parent, in the case of all such Credit Card Acknowledgments and such instruction letter, in form and substance satisfactory to Agent;
(k) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located (except as to jurisdictions in which only certain retail stores are located as Agent may specifically agree), which search results shall be in form and substance satisfactory to Agent;
(l) Agent shall have received environmental audits of Borrower's the Real Property covered by to be subject to the Mortgages conducted by an independent environmental engineering firm acceptable to LenderAgent, and in form, scope scope, substance and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problemsAgent;
(jm) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, a valid and effective title insurance policy (whether in the form of a pro forma policy or a marked up title policy commitment) issued by a company and agent acceptable to Lender Agent: (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender Agent for protection of its interests;
(kn) Lender Agent shall have received a written appraisal as to the Intellectual Property of Borrowers and Guarantors by an appraiser acceptable to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(o) Agent shall have received the original stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(p) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(q) Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request; and
(lr) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance reasonably satisfactory to LenderAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (J Crew Operating Corp)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, a release agreement and all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Senior Lenders to Borrower of their respective financing arrangements with Borrower LFI and its Subsidiaries and the termination and release by it or them, as the case may be, Existing Senior Lenders of any interest in and to any assets and properties of Borrower Borrowers and each Obligorits subsidiaries, duly authorized, executed and delivered by it or each of themit, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party party, and any Borrower or any Obligorof its subsidiaries, as debtor and debtor, (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower Borrowers or any Obligor in favor of such the Existing Lender Senior Lenders or Lendersa trustee acting on its behalf, in form acceptable for recording in the appropriate government governmental office, and (iii) foreign termination and release documents with respect to all documents executed and/or filed in connection with foreign interests granted by Borrowers and/or any Obligor in favor of Existing Senior Lenders, if any;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) Lender shall have received, in form and substance satisfactory to Lender, unlimited guarantees of payment of the Obligations by each Guarantor in favor of Lender, and, with respect to each Guarantor, (i) a security agreement by each such Guarantor in favor of Lender, granting Lender a first priority security interest in each such Guarantor's assets, and (ii) UCC-1 financing statements with respect thereto, in each case duly authorized, executed and delivered by the parties thereto;
(d) Lender shall have received, in form and substance satisfactory to Lender, an intercreditor and subordination agreement from the Subordinated Lenders acknowledged and agreed to by Borrowers, providing for, among other things, (i) the subordination in priority of all security interests of the Subordinated Lenders in assets of Borrowers and Obligors to the security interests of Lender in such assets and the agreement of the Subordinated Lenders not to enforce or exercise their rights or remedies with respect to such security interests and claims against Borrowers and Obligors until the indefeasible payment and satisfaction in full of the Obligations, except as expressly permitted therein and (ii) the subordination in right of payment of all amounts now or hereafter owing by Borrowers and Obligors to the Subordinated Lenders to the indefeasible payment and satisfaction in full of the Obligations, except as expressly provided therein;
(e) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cf) no material adverse change shall have occurred in the assets, business or prospects of any Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair in any material amount or to any material extent the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(dg) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (Borrowers, including, without limitation, current agings of Accounts (setting forth Accounts outstanding at thirty (30), sixty (60) and seventy-five (75) day intervals), current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lenderclosing, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(eh) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgements by lessors, mortgagees, consignees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(fi) Borrowers shall have established the Blocked Accounts and Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower Borrowers with respect to the such Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerBorrowers;
(gj) Lender shall have received evidence, in form and substance satisfactory to Lender, that each Borrower has (i) directed the banks at which such Borrower maintains deposit accounts for the initial receipt of cash, checks and other items from such Borrower's retail store locations to transfer all immediately available funds deposited in such bank only to the Blocked Accounts as required pursuant to Section 6.3 hereof or as otherwise directed by Lender and (ii) notified such banks of the security interests of Lender in such funds and the other Collateral;
(k) Lender shall have received Credit Card Acknowledgements in each case, duly authorized, executed and delivered by the Credit Card Issuers and Credit Card Processors;
(l) Lender shall have received a copy of an amendment to the Subordinated Loan Documents, in form and substance satisfactory to Lender, setting forth amended terms and provisions for the indebtedness evidenced by the Subordinated Loan Documents not inconsistent with the terms hereof and otherwise acceptable to Lender;
(m) the Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall not be not less than $10,000,000 12,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hn) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(ko) Lender shall have received, in form and substance satisfactory to Lender, such the opinion letters of counsel to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and the security interests and liens of Lender with respect to the Collateral and such other matters as and Lender may requestreasonably request and of special trademark counsel to Lender with respect to the Intellectual Property Intangibles; and
(lp) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the amendment and restatement of the Obligations under the Existing Loan Agreement and the initial Loans and providing LC Accommodations to Borrowers pursuant to this Agreement and the initial Letter of Credit Accommodations hereunderother Financing Agreements:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(b) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consentsconsents (including under the Synthetic Lease Facility Agreements), waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of each Borrower and by processors, if any, and warehouses at which Collateral is located;
(fd) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender Agent shall have received evidence the consent of insurance and loss payee endorsements required hereunder and the lenders under the other Financing Synthetic Lease Facility Agreements, in form and substance satisfactory to LenderAgent, duly executed and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered delivered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may requestparties thereto; and
(le) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders certain existing lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC Uniform Commercial Code termination statements for all UCC Uniform Commercial Code financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any ObligorBorrower, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lendersexisting lenders, in form acceptable for recording in the appropriate government office, other than the Anderson Mortgage;
(bc) all requisite corporate action and proceedings in proceedxxxx xx connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three five (35) Business Days business days prior to the date hereof;
(ef) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgments by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;
(f) Lender shall have received, in form remedies and substance satisfactory to Lender, all necessary agreements otherwise deal with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerCollateral;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(h) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lenderreceived, and in form, scope and methodology satisfactory to Lender, Phase I hazardous waste and environmental audits, upon which Lender is expressly entitled to rely, conducted by an independent environmental engineering firm at Borrower's expense, of Borrower's Real Property located in Oklahoma City, Oklahoma and Chattanooga, Tennessee, confirming (i) Borrower is in compliance with all material applicable Environmental Laws with respect to the Real Property covered by such audit, and (ii) there is no material actual liability of Borrower for any remedial action with respect to any environmental conditions applicable to the absence of any material environmental problemsReal Property covered by such audit;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy commitments issued by a company companies and agent agents acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be are not disclosed by surveys and (iii) containing any reasonable, standard and legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, (i) current agings and rollforwards of Accounts through and including the date hereof, (ii) any and all supporting documentation necessary to allow Lender to accurately identify and verify Eligible Accounts at or before the date hereof, and (iii) all such opinion letters financial information, budgets, cash flows and other information respecting the Collateral and the business of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters Borrower as Lender may reasonably request; and;
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder Lender shall have been duly received a certificate executed by the Vice President Finance of Borrower setting forth in reasonable detail the sources and delivered to Lenderuses of the funds in the transactions contemplated herein;
(m) Lender shall have received, in form and substance satisfactory to Lender., a certificate from Borrower, regarding the Equipment of Borrower, which includes a listing of all Equipment and the locations of such Equipment, signed by the Vice President- Finance, dated as of the date hereof;
(n) Borrower shall have entered into one or more lockbox and/or blocked account agreements acceptable to Lender;
(o) Lender shall have received, in form and substance satisfactory to Lender, a closing certificate signed by the President and Vice President Finance of Borrower dated as of the date hereof, stating that (i) the representations and warranties set forth in Section 8 hereof are true and correct on and as of such date, (ii) all exhibits and schedules in this Agreement and the Other Financing Agreements are true, correct and complete, (iii) all covenants, conditions and agreements in this Agreement required to be satisfied on or before the date hereof have been complied with, and, (iv) no Event of Default or event or condition which, with notice or passage of time or both, would constitute an Event of Default, has occurred or is continuing;
(p) the Initial Excess Availability as determined by Lender, as of the date hereof, shall be not less than Four Hundred Thousand Dollars ($400,000) after giving effect to (i) the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder, and (ii) the payment of any and all reasonable out of pocket fees and expenses incurred by Lender in connection with the initial transactions hereunder;
(q) Carl B.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Revolving Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Lenders shall have received all information and copies of all documents, including records of requisite corporate corporate, and other action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation, formation or other organization document of any of Borrowers certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of any of Borrowers as is set forth herein and such document as shall set forth the organizational identification number of any of Borrowers, if one is issued in its jurisdiction of incorporation;
(cb) no material adverse change shall have occurred in the assets, business businesses or prospects of Borrower Borrowers and Obligors, taken as a whole, since February 18, 1999, the date of Lenderthe commencement of Agent's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor Borrowers and Obligors, taken as a whole, to perform its their obligations hereunder or under any of the other Financing Agreements to which it any of them is a party or of Lender Agent to enforce the Obligations or realize upon the Collateral. Without limiting the generality of the foregoing (i) no investigation, litigation or other proceedings shall be pending or threatened against any Borrower, or any Obligor or any affiliate as of the closing which could have a Material Adverse Effect in the good faith determination of Agent and Lenders, and (ii) the Collateral shall not have materially declined in value from the values set forth in any of the appraisals or field examinations previously done;
(dc) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may reasonably require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lenderclosing, together with such supporting documentation as may be reasonably necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the CollateralCollateral and including documentation with respect to inventory in transit, goods in bonded warehouses or at other third party locations), the results of which each case shall be satisfactory to LenderAgent in good faith, not more than three (3) Business Days prior to the date hereof;
(ed) Lender Agent shall have received, in form and substance sub-stance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in good faith in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises (other than Retail Store locations) of Borrower Borrowers and Obligors and by customs brokers, freight forwarders and cargo consolidators and warehouses at which Collateral is located;
(e) Agent shall have received Credit Card Acknowledgments with respect to arrangements of Borrowers with Credit Card Issuers and Credit Card Processors, in each case, duly executed and delivered by the Credit Card Issuers and Credit Card Processors;
(f) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all necessary agreements with the depository banks a Deposit Account Control Agreement by and Borrower with respect to the among Agent, Borrowers, and each bank where Borrowers and Obligors have a Blocked Accounts as Lender may require pursuant to Section 6.3 hereofAccount, in each case, duly authorized, executed and delivered by such depository banks bank and BorrowerBorrower (or shall be the bank 's customer with respect to such deposit account as Agent may specify);
(g) the Excess Availability as determined by Lender Agent shall have received evidence, in good faithform and substance satisfactory to Agent, as that Agent has a valid perfected first priority security interest in all of the date hereofCollateral (including, shall be not less than $10,000,000 after giving effect to without limitation, one hundred (100%) percent of the initial Loans made or to be made hereunder issued and Letter outstanding Capital Stock of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderFSC);
(h) Lender Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(i) Lender Agent shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lenderreceived, in form and in form, scope and methodology sub-stance satisfactory to LenderAgent, confirming (i) a guarantee of payment by each Borrower is in compliance with all material applicable Environmental Laws of the Obligations owed by each of the Obligors and the Additional L/C Debtors, and (ii) the absence a guarantee of any material environmental problemspayment by all Obligors of all Obligations, secured by a first and only security interest in favor of Agent granted by all Obligors, except as otherwise agreed in writing by Agent, in all of their existing and future assets constituting Collateral;
(j) Lender Agent and Lenders shall be satisfied that (A) as of the date hereof, Borrowers and Obligors taken as a whole, are not insolvent or will not become insolvent as a result of the transactions contemplated hereby, (i) Borrowers and Obligors, taken as a whole, do not have unreasonably small capital after the consummation of the transactions contemplated hereby to continue to engage in its business, and (ii) Borrowers and Obligors, taken as a whole, have not incurred liabilities as a result of the transactions contemplated hereby that are beyond their ability to pay as such liabilities mature;
(k) Agent shall have received the Fee Letter executed and delivered by all of the parties thereto;
(l) No material adverse change in the business, operations or prospects of Borrowers and Obligors, taken as a whole, shall have occurred since the date of the commencement of Agent's field examinations conducted prior to the date of the proposal letter, dated October 15, 2003, by and between Parent and Agent;
(m) Agent shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Obligors with respect to the Financing Agreements and such other matters as Lender Agent may reasonably request; and
(ln) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance reasonably satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements; without limiting the foregoing, Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower Borrowers and Guarantors and/or their respective Subsidiaries of their such existing lenders' respective financing arrangements with Borrower Borrowers and Guarantors and/or such Subsidiaries and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties property of each Borrower or Guarantor and each Obligorits Subsidiaries, duly authorized, executed and delivered by it or each of themsuch existing lender, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it each such existing lender or any of them or their its predecessors, as secured party party, and Borrower any Borrower, any Guarantor, any such Subsidiary or any other Obligor, as debtor debtor, and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor, its Subsidiaries or any other Obligor in favor of such Existing Lender or Lendersexisting lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of any Borrower or Guarantor since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgements by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such person to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have receivedreceived evidence, in form and substance satisfactory to it, that AETG has directly or indirectly contributed $10,000,000 to Parent's capital in a manner satisfactory to Lender;
(g) Lender shall have received evidence of insurance required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(gh) the The Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 25,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;Initial Vehicle CapEx Schedule.
(kj) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and such other matters as Lender may request;
(k) Lender shall have conducted such review and due diligence as it deems appropriate (with the results of such review and due diligence to be satisfactory to Lender) with respect to (i) contracts pursuant to which any of the Borrowers render services to its customers, (ii) performance bonds, and any similar instruments or performance support, which any Borrower has provided to any of its customers, (iii) all collective bargaining agreement to which any Borrower or any Subsidiary of a Borrower is a party, and (iv) other matters pertaining to the business, operations or assets of any of the Borrowers or their Subsidiaries;
(l) Lender shall have received evidence satisfactory to it that the requisite number of holders of the Senior Notes have consented, in a manner acceptable to Lender, to (a) the terms and conditions of this Agreement and the other Financing Agreements, including, without limitation, to the Lender's security interest in the Collateral and (b) such supplemental indenture or other amendments to the Indenture and related documentation as are necessary to permit the Borrowers and Guarantors to enter into and perform the Financing Agreements and obtain the Loans and Letter of Credit Accommodations; such supplemental indenture and other amendments shall have been executed and delivered and all conditions precedent to the effectiveness thereof shall have been satisfied;
(m) Lender shall have received (i) a guarantee agreement, in form and substance satisfactory to it, from (A) each Borrower, guaranteeing the Obligations of all other Borrowers, and (B) each Subsidiary of Parent that is not a Borrower, guaranteeing the Obligations of all Borrowers and (ii) a security agreement from each Subsidiary of Parent that is
not a Borrower, granting Lender a security interest in its personal property of the same types as the Collateral to secure its guarantee of the Obligations;
(n) Lender shall have received the Intercreditor Agreement, duly executed by the collateral agent for the holders of the Senior Notes, and in full force and effect; and
(lo) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Atlantic Express Transportation Corp)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower Borrowers or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower Borrowers or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers, or either of them, since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower Borrowers, or either of them, or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require require, and Lender shall have received current agings of receivables, current perpetual inventory records and/or rollforwards of accounts and inventory through the date of closing, and documentation with respect to inventory in transit, goods in bonded warehouses or at other third-party locations, to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(ef) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(fg) Lender shall have received environmental assessments with respect to the Real Property conducted by an independent environmental consulting firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) that such property and the owner and all occupants thereof are in material compliance with all applicable Environmental Laws and (ii) the absence of any material environmental problems; provided, however, that if such assessments have not been delivered to Lender as of the date of this Agreement and Lender nevertheless elects to fund the Loans, such assessments shall be delivered to Lender no later than October 31, 1998;
(h) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with valid and effective title insurance policies (or commitments therefor) issued by a company and agent acceptable to Lender (i) insuring the depository banks priority, amount and Borrower sufficiency of the Mortgages, and (ii) containing any legally available endorsements, assurances or affirmative coverages requested by Lender for protection of its interests;
(i) Lender shall have received appraisals or opinions of value, in form, scope and substance satisfactory to Lender, with respect to the Blocked Accounts as Real Property; provided, however, that if such appraisals have not been delivered to Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereofof this Agreement and Lender nevertheless elects to fund the Loans, such appraisals shall be not less delivered to Lender no later than $10,000,000 after giving effect to August 15, 1998 for the initial Loans made or to be made hereunder Real Property in Clackamas County and Letter of Credit Accommodations issued or to be issued September 15, 1998 for the Real Property in connection with the initial transactions hereunderXxxxxxx County;
(hj) The Smart & Final Note shall have been assigned, endorsed, negotiated, and delivered to Lender, Lender shall have received an acknowledgment of such assignment from Smart & Final, Inc. in form and substance satisfactory to Lender, and Lender shall have confirmed the creditworthiness of Smart & Final, Inc. to its satisfaction;
(k) The Eligible Notes shall have been assigned, endorsed, negotiated, and delivered to Lender, and Lender shall have received acknowledgments of assignment from such of the makers of the Eligible Notes, in form and substance satisfactory to Lender, as Lender shall have determined in its sole discretion;
(l) Lender shall have entered into all such subordination and intercreditor agreements with third parties as Lender requires in its discretion, all in form and substance satisfactory to Lender;
(m) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(in) Lender shall have received environmental audits of Borrower's Real Property covered the Excess Availability as determined by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in formas of the date hereof, scope and methodology shall be satisfactory to Lender, confirming (i) Borrower is Lender in compliance its discretion after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with all material applicable Environmental Laws and (ii) the absence of any material environmental problemsinitial transactions hereunder;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(ko) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and such other matters as Lender may request; and
(lp) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (United Grocers Inc /Or/)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) a Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by Canadian Imperial Bank of Commerce of its financing arrangements with Guarantor, and the Existing Lenders to Borrower termination by The Chase Manhattan Bank and Citizens Business Credit Company of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, and them of any interest in and to any assets and properties of Borrower Borrower, Guarantor and each any other Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC and PPSA termination statements for all UCC and PPSA financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officedebtor;
(b) b all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority;
(c) c no material adverse change shall have occurred in the assets, asset or business or prospects of Borrower or any Obligor since February 18, 1999, the date of Lender's ’s latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) d Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) e Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or or, in Lender’s good faith determination, desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, (i Collateral Access Agreements by owners and lessors of leased premises of Borrower and Guarantor and by warehouses at which Collateral is locatedlocated and (ii) the agreement of the issuer of the Fixed Rate NJEDA Bond Letter of Credit to act on behalf of, and pursuant to the direction of, the Lender with respect to the Fixed Rate NJEDA Bond Agreements;
(f) f the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $1,500,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower and Guarantor with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerBorrower and Guarantor;
(g) the Excess Availability as determined by h Lender shall have received evidence, in good faithform and substance satisfactory to Lender, as that Lender has a valid perfected first priority security interest in all of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderCollateral;
(h) i Lender shall have received and reviewed UCC and PPSA search results for all jurisdictions in which assets of Borrower and Guarantor are located, which search results shall be in form and substance satisfactory to Lender;
(j Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payeepayee as its interests may appear;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) k Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and
(l) l the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Inverness Medical Innovations Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:. If any of the following conditions are not satisfied by January 9, 1998, Lender shall have no further obligation hereunder. Any of the following conditions may be waived by Lender, but only in a written waiver signed by a duly-authorized officer of Lender.
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by and Lender shall have satisfied itself that it has valid, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended as security for the Obligations, or any the liability of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereto, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and of such other information with respect to the Collateral financial information, projections, budgets, business plans and cash flows as Lender may require shall reasonably request from time to determine the amount of Revolving Loans available to Borrower (time, including, without limitationbut not limited to, current agings of receivables, current perpetual inventory records and/or roll-forwards rollforwards of Accounts and Inventory through the date of closing and test counts (including a physical count of the Inventory in by a manner satisfactory third party acceptable to Lender), together with such supporting documentation, including documentation as may be necessary with respect to Inventory in-transit, goods in bonded warehouses or appropriateat other third-party locations, and other documents and information that will enable Lender to accurately identify and verify the Collateral)eligible Collateral at or before closing in a manner satisfactory to Lender, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgments by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kg) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(h) the Excess Availability as determined by Lender as of the date hereof, and as of the date the initial Loans and the initial Letter of Credit Accommodations are to be provided hereunder, shall be not less than $500,000 for Acquisition Corp. and $250,000 for Angeles, respectively, in each case after giving effect to the initial Loans made or to be made hereunder and the payment of all fees and expenses payable upon the consummation of the initial transactions contemplated by this Agreement;
(i) Lender shall have received, in form and substance satisfactory to Lender and its counsel, the assignment of all of Borrower's rights in registered patents, trademarks, service marks and copyrights, as Collateral hereunder, on Lender's standard forms of Collateral Assignments;
(j) Lender shall have received, in form and substance satisfactory to Lender, an executed copy of a Blocked Account Agreement, pursuant to Section 6.3(a) hereof, among Lender, Borrower and Union Bank (except that Angeles may defer providing said Blocked Account Agreement until two Business Days prior to the date the first Loan or Letter of Credit Accommodation is to be made to Angeles); and
(lk) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender; and
(l) Any holders of a security interest in Borrower's assets including, without limitation, vendors of Inventory to Borrower, the Seller, and the Estate of Nat Xxxxxx, xxall have executed such intercreditor and security interest and debt subordination agreements in form and substance satisfactory to Lender.
(m) Consolidated Capital of North America, Inc. (the "Parent") and California Building Systems, Inc. ("CBS") shall have executed and delivered a Continuing Guaranty in favor of Lender with respect to the Obligations, on Lender's standard form, and the Parent and CBS shall have executed and delivered to Lender a security agreement with respect to all of their assets, on Lender's standard form, granting Lender a first-priority security interest therein, together with all appropriate UCC-1 Financing Statements and other documentation satisfactory to Lender in its discretion.
(n) Lender shall have received, in form and substance satisfactory to Lender, evidence that the Purchase Agreements have been duly executed and delivered by and to the appropriate parties thereto, and the same shall be satisfactory to Lender in its sole discretion, and the transactions contemplated by the Purchase Agreements shall have been consummated prior to or contemporaneously with the execution of this Agreement, in a manner satisfactory to Lender in its sole discretion and in compliance with all applicable laws, rules and regulations and all agreements binding on Borrower, Seller or their assets, and with all necessary consents, and Lender shall have received evidence of the same, including an opinion of counsel, in form and substance satisfactory to Lender in its sole discretion. Without limiting the generality of the foregoing, the sale of the Seller's assets pursuant to the Purchase Agreements shall be approved by a final order of the United States Bankruptcy Court, such order shall not have been stayed, and no appeal shall have been taken therefrom.
(o) Lender shall have received, in form and substance satisfactory to Lender, the opinion letter of counsel(s) to Borrower with respect to the Purchase Agreements, the Financing Agreements and the security interests and liens of Lender with respect to the Collateral and such other matters as Lender may request;
(p) Lender shall have received, in form and substance satisfactory to Lender, a pro-forma balance sheet of Borrower reflecting the initial transactions contemplated hereunder, including, but not limited to, (i) the consummation of the acquisition of the Purchased Assets by Borrower from Seller and the other transactions contemplated by the Purchase Agreements and (ii) the Loans and Letter of Credit Accommodations provided by Lender to Borrower on the date hereof and the use of the proceeds of the initial Loans as provided herein, accompanied by a certificate, dated of even date herewith, of the chief financial officer of Borrower stating that such pro-forma balance sheet represents the reasonable, good faith opinion of such officer as to the subject matter thereof as of the date of such certificate;
Appears in 1 contract
Samples: Loan Agreement (Consolidated Capital of North America Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt with respect to Real Property owned by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 3,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements by and among Lender, Borrower and each bank where Borrower has a deposit account, in each case, duly executed and delivered by such bank and duly authorized, executed and delivered by Borrower (or Lender shall be the bank's customer with respect to such deposit account, as Lender may specify);
(h) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral;
(i) Lender shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation or organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as additional insured or loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(jk) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priorityopinion letter of Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a1) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination PPSA discharge statements for all UCC PPSA financing statements previously filed by and Lender shall have satisfied itself that it has valid, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended as security for the Obligations or any the liability of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereto, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b2) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c3) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d4) Lender shall have completed a field review of the Records and of such other information with respect to the Collateral financial information, projections, budgets, business plans, cash flows as Lender may require shall reasonably request from time to determine the amount of Revolving Loans available to Borrower (time, including, without limitationbut not limited to, current perpetual inventory records and/or roll-agings of receivables, roll forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in availability projections for Borrower's fiscal year 2000, prepared on a manner satisfactory to Lendermonthly basis, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)documentation, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e5) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments acknowledgements and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgements by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h6) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as first loss payeepayee and additional insured;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k7) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrower and Cottontops GLC with respect to the Financing Agreements and such other matters as Lender may request; and;
(l8) the Total Excess Availability as determined by Lender as of the date hereof LESS the aggregate amount of all book overdrafts of Borrower, any US Borrower and GL UK shall be not less than an amount that is satisfactory to Lender after giving effect to the initial Loans made or to be made hereunder and the payment of all fees and expenses payable upon the consummation of the initial transactions contemplated by this Agreement;
(9) Lender shall have received, in form and substance satisfactory to Lender, a continuing guarantee by GLC of the payment of all Obligations;
(10) Lender shall have received, in form and substance satisfactory to Lender, a continuing guarantee by each of US Borrowers of the payment of all Obligations and any security agreements and any other documents or instruments evidencing the security interests of Lender on the assets of US Borrowers and such other documents and agreements including legal opinions as Lender may require.
(11) Lender shall have received evidence, in form and substance satisfactory to Lender, that the initial loans under the US Facility and the UK Facility will be advanced concurrently with or immediately upon the making of the initial Loans hereunder;
(12) Lender shall have received, in form and substance satisfactory to Lender, executed copies of a Blocked Accounts agreement(s), pursuant to Section 6.3 hereof, among Lender, Borrower and Royal Bank of Canada or another financial institution satisfactory to Lender, acting reasonably;
(13) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender;
(14) Lender shall have received, in form and substance satisfactory to Lender, a certificate of the chief financial officer of Borrower certifying Borrower's accrued and unpaid excise tax and duty liabilities and the amount of Borrower's cash on hand as of March 22, 2000; and
(15) Lender shall have received, in form and substance satisfactory to Lender, a certificate of the senior vice president, finance of GLC, certifying Borrower's accrued and unpaid excise tax and duty liabilities as of March 28, 2000 and the amount of Borrower's cash on deposit as of March 27, 2000.
Appears in 1 contract
Samples: Loan Agreement (Geologistics Corp)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender and/or US Collateral Agent shall have receivedreceived evidence (including any inter-creditor arrangements, subordinations or releases of any other Liens in form and substance satisfactory to the Collateral required by Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessorssecured lender, as secured party and party, to a US Borrower or any Obligor, as debtor debtor, and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any US Borrower or any Obligor in favor of such Existing Lender or Lenders, a secured lender in form acceptable for recording with the appropriate governmental authority), in form and substance satisfactory to Lender, that US Collateral Agent has valid perfected and first priority Liens in and upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the Liens permitted herein or in the appropriate government officeother Financing Agreements and Canadian Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesauthorities (and including a copy of the certificate of incorporation of each US Borrower and Obligor certified by the Secretary of State (or equivalent governmental authority) which shall set forth the same complete corporate name of such US Borrower or Obligor and such document as shall set forth the organizational identification number of each US Borrower or Obligor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower US Borrowers or any Obligors since February 18, 1999, the date of Lender's ’s latest field examination and no change or event shall have occurred which would impair the ability of Borrower US Borrowers or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender and/or US Collateral Agent to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)US Borrowers, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereofof making the initial Loans;
(e) Lender US Collateral Agent shall have received, in form and substance satisfactory to LenderUS Collateral Agent, all consents, waivers, acknowledgments and other agreements from third persons which Lender US Collateral Agent may deem necessary or desirable in order to permit, protect and perfect its security interests Liens in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding notice from funding agent under each Pension Plan (Section 9.18(b)), without limitationthe IBM Account Guarantee (unless credit insurance is provided by US Borrowers as set forth in Section 1.36(e)(ii)), Billing Authorization Letters re: Accounts, No-Offset Agreements re: Accounts, Inventory Purchase Agreements, acknowledgements by lessors, mortgagees and warehousemen of US Collateral Access Agreements Agent’s Liens in the Collateral, waivers by owners such persons of any Liens or other claims by such persons to the Collateral and lessors of leased agreements permitting US Collateral Agent access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender US Collateral Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderUS Collateral Agent, and certificates of insurance policies and/or endorsements naming Lender US Collateral Agent as first loss payeepayee and an additional insured;
(ig) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender US Collateral Agent shall have received, in form and substance satisfactory to LenderLender and US Collateral Agent, each acting reasonably, such opinion letters of counsel to Borrower, Holdings US Borrowers and Cottontops the Obligors with respect to the Financing Agreements and such other matters as Lender or US Collateral Agent may request; and, each acting reasonably;
(lh) the other Financing Agreements Agreements, the Canadian Financing Agreements, the Amended Subordinated Credit Facility Agreement, the Subordinated Security and all instruments and documents hereunder and thereunder and in connection with the Bought Deal of Special Warrants and Exchange Offer shall have been duly executed and originals or copies, as applicable, delivered to Lender and be in form and substance satisfactory to Lender;
(i) the transactions contemplated by the Amended Subordinated Credit Facility Agreement, the Bought Deal of Special Warrants and the Exchange Offer shall have been effected to the satisfaction of Lender which, for greater certainty but without limitation, shall include:
(i) in respect of the Bought Deal of Special Warrants, the Canadian Borrower shall have received net proceeds from the Bought Deal of Special Warrants in the amount of not less than C$37,000,000 and applied the entirety of same to reduce the existing indebtedness, liabilities and obligations (the “Existing Debt”) owing to the lenders (the “Existing Lenders”) and their agents under the Original Subordinated Credit Facility Agreement;
(ii) in respect of the Exchange Offer, US$10,000,000 of the Existing Debt shall have been retired by the Existing Lenders in exchange for units comprised of one share of common stock of SMTC Corporation and a fraction of a share purchase warrant of such common stock;
(iii) in respect of the Amended Subordinated Credit Facility Agreement, US$27,500,000 of the Subordinated Loans available thereunder shall have been used to refinance or retire an equivalent amount of the Existing Debt;
(j) Lender shall have received evidence, in form and substance satisfactory to Lender, that all security and guarantees granted or issued by Canadian Borrower, SMTC Nova Scotia Company Limited, 940862 Ontario Inc., SMTC de Chihuahua, S.A. de C.V., Radio Componentes de Mexico, S.A. de C.V. and SMTC Mexico, S.A. de C.V. in favour of the Existing Lenders or in connection with the Original Subordinated Credit Facility Agreement and all Liens with respect thereto (other than such security, guarantees and Liens that Lender shall consent to in writing prior to the date hereof) have been released or discharged or an undertaking, in form and substance satisfactory to Lender, shall have been executed and delivered by the Existing Lenders in favour of Lender agreeing to, among other things, release and discharge such security, guarantees and Liens within a reasonable time following the date hereof;
(k) the Total Excess Availability, as determined by Lender, as of the Initial Advance Date, shall not be less than US$5,000,000 after giving effect to (i) the initial Loans, the Letter of Credit Accommodations, if any, and Canadian Advances made or to be made in connection with the initial transactions hereunder and under the Canadian Financing Agreements and (ii) payment of all fees and expenses in connection with the transactions under the Financing Agreements and Canadian Financing Agreements;
(l) the Intercreditor Agreement shall have been duly executed and delivered to Lender and be in form and substance satisfactory to Lender;
(m) each of the conditions precedent in the Canadian Loan Agreement shall have been satisfied;
(n) US Collateral Agent shall have received, in form and substance satisfactory to LenderUS Collateral Agent, Deposit Account Control Agreements regarding Blocked Accounts by and among US Collateral Agent, applicable US Borrower and each bank where such US Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and such US Borrower;
(o) US Collateral Agent shall have received and reviewed lien, judgment and other applicable search results for the jurisdiction of incorporation of each US Borrower, the jurisdiction of the chief executive office of each US Borrower and all jurisdictions in which assets of US Borrowers and Obligors are located, which search results shall be in form and substance satisfactory to US Collateral Agent; and
(p) US Collateral Agent shall have received originals of the share certificates representing all of the issued and outstanding shares of each US Borrower and Obligor, as applicable, in each case together with stock powers duly executed in blank with respect thereto.
Appears in 1 contract
Samples: Loan Agreement (SMTC Corp)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of any Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor, (ii) terminations or hypothec discharges under Canadian Security Laws for all financing statements or hypothecs previously filed or registered by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor and (iiiii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor favour of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower as is set forth herein and such document as shall set forth the organizational identification number of such Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change Material Adverse Change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateralexamination;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lenders (if any) to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Adjusted Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 16,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Lender shall have received, in form and substance satisfactory to Lender, (i) Deposit Account Control Agreements by and among Lender, Borrower and each bank where Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower (or Lender shall be the bank's customer with respect to such deposit account, as Lender may specify) and (ii) Investment Property Control Agreements by and among Lender, Borrower and each intermediary where Borrower has a securities account or commodities account, in each case duly authorized, executed and delivered by such intermediary and Borrower (or Lender shall be the intermediary's customer with respect to such securities or commodities account as Lender may specify);
(h) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral (except that Lender's security interest in the Real Property of Borrower located in Philadelphia, Pennsylvania shall be a valid perfected third priority security interest);
(i) Lender shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation or organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(j) Lender shall have received cash collateral in the amount of $10,000,000, together with an investment property pledge and security agreement with respect to such cash and the investment account in which such cash is maintained (the "Restricted Cash Collateral Account"), in form and substance satisfactory to Lender, duly authorized, executed and delivered by Borrower;
(k) Lender shall have received, in form and substance satisfactory to Lender, a mortgagee waiver, license and agreement, in form and substance satisfactory to Lender, duly authorized, executed and delivered by each mortgagee of Real Property owned by Borrower;
(l) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(km) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and
(ln) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Impax Laboratories Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower, the results of which shall be satisfactory to Lender, not more than three (3) business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral, subordination agreements in form and substance satisfactory to Lender from all of Borrower's vendors claiming any security interest in or lien upon any of the Collateral, and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral;
(f) Lender shall have received Subordination Agreements in form and substance acceptable to Lender (each a "SUBORDINATION AGREEMENT") from each officer, director and/or shareholder with respect to any indebtedness owing to such officer, director and/or shareholder as of the date of this Agreement.
(g) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(h) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(i) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(gj) the Excess Closing Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 5,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(lk) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower Borrowers and Guarantors and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each ObligorGuarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any ObligorGuarantor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officedebtor;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation or certificate of formation as applicable, of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate or limited liability company name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair in any material respect the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of each Borrower and by processors and warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) aggregate amount of the Excess Availability of Borrowers as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 20,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be;
(h) Lender Agent shall have received, in form and substance satisfactory to Agent, the Noteholder Intercreditor Agreement, the Factor Assignment Agreements, and each of the Letter of Credit Intercreditor Agreements, in each case, duly authorized, executed and delivered by the parties thereto;
(i) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral (other than the Senior Note Priority Collateral and the Letter of Credit Issuer Priority Collateral);
(j) Agent shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, which search results shall be in form and substance satisfactory to Agent;
(k) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(l) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(im) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request; and
(ln) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Perry Ellis International Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any ObligorBorrower, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;; Table of Contents
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by processors and warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hg) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, Deposit Account Control Agreements by and among Agent, Borrower, as the case and each bank where Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower, as the case may be (or Agent shall be the bank’s customer with respect to such deposit account as Agent may specify);
(h) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral;
(i) Agent shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower is located, which search results shall be in form and substance satisfactory to Agent;
(j) Agent shall have received, in form and substance satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Lender Agent: (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender Agent for protection of its interests;
(k) Lender Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee; Table of Contents
(l) Agent shall have received participations from Participants and/or Commitments in the Loans and in the financing arrangements under this Agreement in such amounts and on terms acceptable to Agent;
(m) Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender Agent may request; and
(ln) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Reptron Electronics Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have receivedreceived evidence, in form and substance satisfactory to Lender, all releases, terminations that Lender has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral and any other property which is intended to any assets and properties be security for the Obligations or the liability of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of any Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgments by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(ge) the Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 3,500,000.00 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hf) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kg) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and such other matters as Lender may request;
(h) Lender shall have received evidence, satisfactory to Lender, that Borrowers have obtained and are in material compliance with all material licenses, permits, certificates, approvals and similar authorizations that Borrowers are required to obtain under Environmental Laws and that all such licenses, permits, certificates, approvals and similar authorizations are in full force and effect and Borrower shall have furnished to Lender a complete listing of all operating permits and approvals for its waste processing, storage and transportation facilities with the expiration dates thereof;
(i) Borrowers and the holders of the Senior Subordinated Notes shall have entered into the Securities Purchase Agreement in the form previously delivered to Lender;
(j) Lender and the holders of the Senior Subordinated Notes shall have entered into a Subordination Agreement in form and substance satisfactory to Lender;
(k) Lender shall have received (or shall have previously received) the original certificates of title for all motor vehicles and other rolling stock of Borrowers that are subject to state certificate of title statutes and duly executed, undated applications and other documents required to note Lender's lien thereon;
(l) Lender shall have received a schedule (which may serve as Schedule 8.4 hereto) of all outstanding purchase money indebtedness, including capital leases, of the Borrowers that is secured by Equipment or Real Property showing payee, outstanding amount of such indebtedness and the specific collateral securing such indebtedness; and
(lm) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Lenders (or Agent on behalf of Lenders) making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders existing lenders to any Borrower of their respective financing arrangements with such Borrower (excepting only those purchase money security arrangements and similar financing arrangements disclosed on Schedule 4.1 (a) hereto and not to be terminated on the Closing Date) and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower and Obligor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Obligor as is set forth herein and such document as shall set forth the organizational identification number of such Borrower or Obligor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of any Borrower or Obligor since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in Section 4.1(d) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender Agent to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may reasonably require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing Closing Date and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem reasonably necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of each Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than Four Million Dollars ($10,000,000 4,000,000) after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and each bank where such Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and such Borrower (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(h) Lender Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that Agent, for itself and the ratable benefit of Lenders, has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(i) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation or organization of each Borrower, the jurisdiction of the chief executive office of each Borrower and all jurisdictions in which assets of any Borrower are located, which search results shall be in form and substance reasonably satisfactory to Agent;
(j) Agent shall have received a written appraisal of the Inventory conducted by an appraiser reasonably acceptable to Agent, and in form, scope and methodology reasonably satisfactory to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely;
(k) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(il) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender Agent shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Obligors with respect to the Financing Agreements and such other matters as Lender Agent may reasonably request;
(m) Borrowers shall have received the proceeds of the Hilco Note, and Agent shall have received, in form and substance reasonably satisfactory to Agent, an intercreditor agreement of Hilco Capital LP.;
(n) Agent shall have received, in form and substance reasonably satisfactory to Agent, a draft balance sheet of Borrowers as of December 31, 2003; and
(lo) the other Financing Agreements Agreements, including without limitation, a guaranty and security agreement of the Domestic Subsidiaries and a stock pledge agreement of Borrower Agent, and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance reasonably satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans Loans, and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, (i) evidence that Lender has valid, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations, subject only to Permitted Liens, (ii) all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders others who have provided financial accommodations to any Borrower of their respective financing arrangements with each such Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (iA) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any ObligorBorrower, as debtor and (iiB) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor of such Existing Lender or Lenders, others in form acceptable for recording in the appropriate government office;office and (iii) evidence that the Purchase Agreements have been duly executed and delivered by and to the appropriate parties thereto and the transactions contemplated under the terms of the Purchase Agreements have been consummated prior to or contemporaneously with the execution of this Agreement.
(b) all All requisite corporate action and other actions and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and other actions and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;.
(c) no No material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;.
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans and Term Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;Closing Date.
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Lender's liens and security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;remedies and otherwise deal with the Collateral.
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and such opinion letters of counsel to Borrower with respect to the Blocked Accounts Purchase Agreements, the Financing Agreements, and the security interests and liens of Lender in the Collateral and such other matters as Lender may require pursuant request.
(g) The other Financing Agreements requested or submitted by Lender from or to Section 6.3 hereofBorrower and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
(h) Lender shall have received, in form and substance satisfactory to Lender (i) all agreements with respect to (i) the Blocked Accounts and (ii)all investment property and all other deposit accounts of Borrower as Lender may require, duly authorized, executed and delivered by such depository banks Borrower and Borrower;the appropriate depository, financial or other applicable institution.
(gi) the Excess Availability as determined by Lender in good faithand Suppressed Availability, as of the date hereofClosing Date, shall not be not less than $10,000,000 2,000,000 and $500,000 respectively, after giving the effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued provided in connection with the initial transactions hereunder;.
(hj) All indebtedness owing by (i) Borrower to any Affiliate, (ii) by any guarantor of the Obligations to Borrower or (iii) by Borrower to any stockholder, officer or director of Borrower whether of not on Affiliate of Borrower shall have been fully subordinated to the Obligations, to Lenders satisfaction.
(k) Lender shall have received, in form and substance satisfactory to Lender, (i) a pro forma and market value balance sheet of Borrower, reflecting the initial transactions contemplated hereunder, including, but not limited to, (A) the Loans and Letter Of Credit Accommodations to be provided by Lender to Borrower, (B) the use of the proceeds of the initial Loans as provided herein and (C) the consummation of the acquisition of the Purchased Assets by Borrower from Seller and the other transactions contemplated by the Purchase Agreements and (ii) a projection and forecast of Borrower’s cash flow for its current and succeeding fiscal year all accompanied by a certificate, dated as of the Closing Date, of the chief executive officer and chief financial officer of Borrower, stating that such pro-forma balance sheet, market value balance sheet and projection of cash flow, represents the reasonable, good faith opinion of such officers as to the subject matter thereof as of the date of such certificate and as to such other matters as Lender may request.
(l) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;, all of which insurance shall be in amounts, for periods, with coverage and otherwise satisfactory to Lender, in form and substance, including policies covering business and environmental risk with respect to the Collateral.
(im) Lender shall have received a pledge in form and substance satisfactory to Lender of all of the Capital Stock of each Subsidiary of Inyx requested by Lender.
(n) Lender shall have received assignments of all Material Contracts, leases, rent proceeds from leases distribution rights, permits, licensing agreements and Intellectual Property, as Lender shall have requested, all in form and substance satisfactory to Lender.
(o) All fees, costs and expenses owing to Lender, including the fees and disbursements of Lender’s counsel shall have been paid, concurrently with the execution hereof.
(p) Borrower shall have delivered to Lender, at its expense, an environmental audits audit of Borrower's the Manati Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, Lender and in form, scope and methodology satisfactory to Lender, Lender confirming that (i) Borrower and Seller is each in compliance with all Environmental Laws, in all material applicable Environmental Laws respects and (ii) the absence ii)there is no material potential or actual liability of Borrower for any material remedial action with respect to any environmental problems;condition or any other significant environmental problem.
(jq) Lender shall have receivedreceived evidence of payments or certificates, to its satisfaction that all Federal, Commonwealth, municipal and other taxes or charges of any Governmental Agency owing or claimed owing by Borrower have been paid or adequate provision for the payment thereof, including payment plans, to Lender’s satisfaction, has been made.
(r) Borrower shall be in full compliance with the financial covenants contained in Sections 9.14, 9.15, 9.16 and 9.17 hereof.
(s) Borrower shall have furnished evidence to Lender that all property taxes on the Real Property then due have been paid, Borrower shall have executed and delivered to Lender all Real Estate Security and Lender shall have received mortgagee title policies with respect thereto in such amounts and from such insurers and with such affirmative coverage’s as Lender may request, all in form and substance reasonably satisfactory to Lender.
(t) Lender shall have received recent surveys of the Manati Real Property prepared by a licensed engineer, satisfactory to Lender, a valid conforming to the descriptions and effective title insurance policy issued by a company showing no encroachments and agent certified to Lender and Lender shall have received appraisals for the Real Property from appraisers acceptable to Lender, addressed to Lender, all in form and substance and showing such values therefor, as shall be acceptable to Lender.
(u) The market value balance sheet of Borrower, the certificate and the projection referred to in Section 4.1 (k) hereof shall reflect to Lender’s satisfaction that Borrower is Solvent.
(v) Lender (i) insuring the priority, amount and sufficiency shall have received evidence of zoning of the MortgagesReal Property disclosing no violation of applicable regulations, (ii) insuring against matters that would be disclosed by surveys satisfactory to Lender and (iii) containing any legally available endorsementsflood zone certificates for the Real Property, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;satisfactory to Lender.
(kw) Lender shall have received, in form and substance satisfactory to Lender, a guarantee of payment of the Obligations by each Affiliate of Borrower requested by Lender, secured by a first and only liens and security interests (except for those permitted by Section 9.8(a) hereof) in each such opinion letters Persons assets in favor of counsel to BorrowerLender, Holdings including real property, Equipment Inventory and Cottontops with Accounts of Inyx Pharma, Ltd.
(x) With respect to the Financing Purchase Agreements and such other matters as Lender may request; andthe Purchased Assets:
(li) the other Financing Agreements and all instruments and documents hereunder and thereunder Lender shall have been duly executed and delivered to Lenderreceived, in form and substance satisfactory to Lender, evidence that the Purchase Agreements, have been duly executed and delivered by and to the appropriate parties thereto and the transactions contemplated under the terms of the Purchase Agreements shall have closed and have been consummated prior to or contemporaneously with the execution of this Agreement;
(ii) Lender shall have received, in form and substance satisfactory to Lender, the agreement of the Seller consenting to the collateral assignment by Borrower to Lender of all of Borrower's rights and remedies and claims for damages, indemnification or other relief under the Purchase Agreements and granting Lender such other rights as Lender may require, duly authorized, executed and delivered by Seller;
(iii) Lender shall have received in form and substance satisfactory to Lender such opinion letters of counsel to the Seller with respect to the Purchase Agreements, the consummation of the transactions contemplated thereby and as to such other matters as Lender may request;
(iv) Lender shall have received in form and substance satisfactory to Lender evidence that all payments required to be made by Borrower in connection with the Purchase Agreements have been, or concurrently with the making of the Initial Loans will be, made;
(v) The purchase price for the Purchased Assets payable by Borrower to Seller shall not exceed $15,000,000;
(vi) No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the transactions described in the Purchase Agreements and no governmental or other action or proceeding has been threatened or commenced, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the Purchase Agreements and no law, regulation, order, judgment or decree of any governmental authority shall exist which has or could reasonably be expected to have a Material Adverse Effect; and
(vii) Inyx USA shall have acquired from Seller, pursuant to the Purchase Agreements, good and marketable title to the Purchased Assets to Lender’s satisfaction free and clear of all liens, claims, charges, encumbrances, security interest and rights of third parties, except Permitted Liens.
(y) Lender shall have received all such subordination agreements, non-disturbance agreements, assignments of leases, landlord’s consents and other agreements and consents from landlords, subtenants, mortgagees and others with respect to the Real Estate Security and with respect to each Affiliate of Borrowrs, as Lender shall request.
(z) Lender shall have received estoppel certificates from all of Seller’s landlords, customers, suppliers and others with whom Borrower will do business or have contractual arrangements showing that no defaults thereunder exist or that any alleged default will not have a Material Adverse Effect.
(aa) Lender shall have received appraisals for the Real Estate Security and the Purchased Equipment from American Appraisal Associates, dated March 9, 2005 and March 8, 2005, respectively.
(bb) Laurus shall have (i) delivered to Lender a certificate of Laurus, specifying the amount of Debt of Inyx and its Subsidiaries to Laurus, the security therefore and the amount to be paid to pay and discharge such Debt in full, (ii) entered into such agreements with Lender with respect to the payment of such Debt and the assignment or release of the security therefore as Lender may request and (iii) assigned to Lender or released of all security for such Debt, all in form and substance satisfactory to Lender.
(cc) Lender shall have received evidence satisfactory to Lender that all payments required to be made by Borrower (i) to pay and discharge the debt to Laurus and effect the release of security therefore and (ii) to acquire the Purchased Assets and pay the purchase price therefore, will be made concurrently with the making of the Initial Loans.
(dd) Lender shall have received assignments of key man life insurance policies, satisfactory to Lender in all respects, in the aggregate amount of $4,000,000, insuring the life of Jxxx Xxxxxxx.
(ee) Lender shall have received background reports, satisfactory to Lender in all respects, on the principal shareholders and officers of Borrower.
(ff) The amount payable to Laurus to pay in full and discharge the Debt of Borrower to Laurus shall not exceed the amount of $13,000,000. Notwithstanding that all conditions specifies in this Section 4.1 have not been complied with or fulfilled by the Closing Date, Lender may permit Borrower periods of up to sixty (60) days from the Closing Date to comply with and satisfy one or more of the conditions specified in this Section 4.1 hereof which have not been complied with and satisfied as of the Closing Date and may defer funding of, fund partially or not fund at all, any or all of the initial and future Loans as Lender shall determine, unless and until such conditions have been satisfied, all in Lender’s discretion. Lender shall have no liability to Borrower whatsoever for not funding any or all of the Loans if any such condition is not satisfied within such 30 day period.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no change which has had or could be reasonably expected to have a Material Adverse Effect shall have occurred since the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of the Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower, the results of which shall be satisfactory to Lender, not more than five (5) Business Days prior to the date hereof;
(e) Lender shall have received evidence of insurance and loss payee or additional insured, as applicable, endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee or additional insured as applicable;
(f) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements, the security interests and liens of Lender and such other matters as Lender may request;
(g) Lender shall have received a certificate regarding the solvency of Borrower, in form and substance satisfactory to Lender, executed by the chief executive officer and the chief financial officer of Borrower;
(h) Lender shall have received, in form and substance satisfactory to Lender, a pledge of one hundred percent (100%) of the common stock, or other equity interests, in any Person owned by SSG (other than Sport Supply Group Asia, Ltd., a Hong Kong corporation, with respect to which Lender shall have received a pledge of sixty-five percent (65%) of such stock);
(i) Lender shall have received a certificate executed by the chief executive officer and the chief financial officer of Borrower, setting forth in reasonable detail the sources and uses of funds in the transactions contemplated herein;
(j) Lender shall have received, in form and substance satisfactory to Lender, written instructions from Borrower Representative directing the application of the initial Revolving Credit Loans or Letter of Credit Accommodations, if any, on the date hereof pursuant to this Agreement;
(k) the Excess Availability, as determined by Lender, as of the date hereof shall be not less than $2,000,000 after giving effect to the initial Loans made or to be made and the Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(l) Lender shall have received a licensor agreement, in form and substance satisfactory to Lender, for each trademark or any other intellectual property which Borrower licenses set forth on Schedule 4.1(l), executed by Borrower and the licensor;
(m) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorObligor (or payoff letters in form and substance satisfactory to Lender including the agreement of such existing lender or lenders to effectuate such terminations and releases promptly upon receipt of the payoff amount set forth therein), duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(bn) all requisite corporate action Lender shall have received from Borrower a report of Borrower's slow-moving Inventory, based upon Inventory on-hand versus quantity sold for the twelve month period ending February 23, 2001, and proceedings in connection Lender shall be satisfied with this Agreement and the result thereof; and
(o) Lender shall have received the other Financing Agreements shall be in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which negative pledge agreement for each case shall be satisfactory to Lender, not more than three (3location where Borrower owns Real Property) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance reasonably satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Sport Supply Group Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) Lender shall have received, in form and substance satisfactory to Lender, all releasesevidence that the Certificate of Merger with respect to the Merger has been filed with the Secretary of State of the States of Delaware and Massachusetts and the Merger has been consummated prior to or contemporaneously with this Agreement and is valid and effective in accordance with the Merger Agreements and the applicable corporation statutes of the States of Delaware and Massachusetts;
(c) Lender shall have received, terminations in form and such other documents substance satisfactory to Lender, evidence that the Purchase Agreements have been duly executed and delivered by and to the appropriate parties thereto and the transactions contemplated under the terms of the Purchase Agreements have been consummated prior to or contemporaneously with the execution of this Agreement;
(d) Lender shall have received, in form and substance satisfactory to Lender, the Intercreditor and Subordination Agreement among Lender, WCAS and certain Affiliates of WCAS, as Lender may request acknowledged and agreed to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and Guarantor, providing for the termination relative rights and release by it or thempriorities of Lender, as WCAS, and certain Affiliates of WCAS with respect to the case may be, of any interest in and to any assets and properties of Borrower and each Obligorrelated matters, duly authorized, executed and delivered by it or each WCAS, certain Affiliates of themWCAS and Borrower;
(e) Lender shall have received, includingin form and substance satisfactory to Lender, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed the guarantee by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor Guarantor in favor of such Existing Lender or Lendersof all of the Obligations of Borrower, in form acceptable for recording in the appropriate government officeduly authorized, executed and delivered by Guarantor;
(bf) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cg) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(dh) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(ei) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgments by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;
(f) Lender shall have received, in form remedies and substance satisfactory to Lender, all necessary agreements otherwise deal with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerCollateral;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any ObligorBorrower, as debtor debtor; (ii) satisfaction and removal of any notation of a lien or other encumbrance on any certificate of title for titled goods in favor of the Existing Lenders and (iiiii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory equipment records and/or roll-forwards of Accounts and Inventory Equipment through the date of closing and test counts of the Inventory Equipment in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is locatedAgreements;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Closing Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 2,500,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, a true, complete and correct copy of a letter agreement regarding the Bareboat Charter Party, dated February 1992, between K-Corp. and Borrower, with respect to the barge vessel Jax-San Juan Bridge, pursuant to which K-Corp. agrees to reduce the dailx xxte payable by Borrower to K-Corp. from $10,050 to $8,375 for the period from March 1, 2004 through and including December 31, 2004;
(h) Lender Agent shall have received, in form and substance satisfactory to Agent, a true, complete and correct copy of a letter agreement regarding the Bareboat Charter Party, dated February 1992, between K-Corp. and Borrower, with respect to the barge vessel San Juan-Jax Bridge, pursuant to which K-Corp. agrees to reduce the xxxxy rate payable by Borrower to K- Corp. from $10,050 to $8,375 for the period from March 1, 2004 through and including December 31, 2004;
(i) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, Borrower, as the case and each bank where Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower, as the case may be (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(j) Agent shall have received (i) evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral and (ii) the original certificate of title for all titled goods owned by Borrower, each of which shall contain a notation thereon that Agent is the sole secured party with respect thereto;
(k) Agent shall have received and reviewed lien, tax and judgment search results for the jurisdiction of organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower is located, which search results shall be in form and substance satisfactory to Agent;
(l) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(im) Lender Agent shall have received environmental audits written appraisals (or updates of Borrower's Real Property covered by existing appraisals) with respect to the Mortgages conducted Equipment, by an independent environmental engineering firm appraiser acceptable to LenderAgent, addressed to Agent and on which Agent is expressly permitted to rely, in form, scope and methodology reasonably satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problemsAgent;
(jn) Lender Agent shall have receivedreceived a business plan of Borrower consisting of projected balance sheets, and related income statements and cash flow statements, and availability forecasts, together with appropriate supporting details and a statement of underlying assumptions, which covers a three-year period and which is prepared on a monthly basis for the first year, a quarterly basis thereafter and which is otherwise in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interestsAgent;
(ko) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, the December Access Agreement, duly authorized, executed and delivered by MarAd and acknowledged by Borrower;
(p) Agent shall have received, in form and substance satisfactory to Agent, the June Access Agreement, duly authorized, executed and delivered by MarAd and acknowledged by Borrower;
(q) Agent shall have received, in form and substance satisfactory to Agent, the Interbay Access Agreement, duly authorized, executed and delivered by Interbay and acknowledged by Borrower;
(r) Agent shall have received, in form and substance satisfactory to Agent, the Transportation Receivables Intercreditor Agreement, duly authorized, executed and delivered by Transportation Receivables and acknowledged by Borrower;
(s) Agent shall have received, in form and substance satisfactory to Agent, the K-Corp. Subordination Agreement, duly authorized, executed and delivered by the K-Corp. and acknowledged by Borrower;
(t) Agent shall have received a report of a financial consultant acceptable to Agent with respect to the turnaround plan of Borrower, which report shall be in form and substance satisfactory to Agent;
(u) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender Agent may request, including, without limitation, the analysis of Thompson Coburn, special maritime counsel to Borrower, and Thompxxx Xxxx, xxxxxal trucking counsel to Borrower; and
(lx) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such documents as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(cb) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since February 18, 1999, the date of Lender's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(dc) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(ed) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(fe) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) aggregate amount of the Excess Availability of all of Borrowers as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 15,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(f) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Lender shall be the bank's customer with respect to such deposit account as Lender may specify);
(g) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral, subject as to priority, only to the liens indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 hereof which under applicable law have priority over the security interests of Lender;
(h) Lender shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrower and Guarantors are located, which search results shall be in form and substance satisfactory to Lender;
(i) Lender shall have received, in form and substance satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender: (i) insuring the priority, amount and sufficiency of the Mortgage, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Lender for protection of its interests;
(j) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of the Subsidiaries of Parent (other than Capital Stock of the Foreign Subsidiaries, Polymers and Worldwide which are Subsidiaries of Global and Global which is a Subsidiary of P&O), in each case together with stock powers duly executed in blank with respect thereto;
(k) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kl) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and such other matters as Lender may request; and
(lm) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance reasonably satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officedebtor;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower Borrowers and Guarantors and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each ObligorGuarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) the authorization to prepare and file UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any ObligorGuarantor, as debtor debtor, (ii) PPSA terminations or hypothec discharges for all PPSA financing statements or hypothecs previously filed or registered by it or them or their predecessors, as secured party and any Borrower or Guarantor, as debtor, and (iiiii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor Guarantor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assetsact, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change condition or event shall have occurred which would impair since the ability date of Borrower Agent's latest field examination (not including for this purpose the field review referred to in clause (d) below) that has or any Obligor is reasonably likely to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateralhave Material Adverse Effect;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall not be satisfactory inconsistent with the reviews performed by or on behalf of Agent or Lenders prior to Lendersuch review, not more than three (3) Business Days prior to the date hereofhereof and in addition, Agent shall have received the results of the most recent physical counts of inventory of Borrowers and Guarantors and any adjustments to standard costs as a result of such physical counts;
(e) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons (other than Deposit Account Control Agreements not required to be obtained under clause (h) below) which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral of the US Borrowers Companies in favor of Agent and the hypothecs, the security interests in and liens of Canadian Lender upon the Collateral of the Canadian Borrowers, or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingprovided, without limitationthat, the failure to deliver a Collateral Access Agreements Agreement as to a specific leased location shall not be a condition of closing, so long as all other conditions are met after giving effect to any Reserves established by owners and lessors Agent in respect of leased premises amounts due or to become due to the owner or lessor thereof as provided for in the definition of Borrower and by warehouses at which Collateral is locatedEligible Inventory herein;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) aggregate amount of the Excess Availability as determined by Lender in good faithof Borrowers, as of the date hereof, shall be not less than $10,000,000 25,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderhereunder and after provision for payment of all fees and expenses of the transaction;
(g) Agent shall have received a Borrowing Base Certificate setting forth the Loans available to Borrowers as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of US Borrower;
(h) Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower or Guarantor has a deposit account (other than as to those deposit accounts for which Agent is not requiring a Deposit Account Control Agreement as of the date hereof), in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be;
(i) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has valid perfected and first priority security interests in and liens upon the Collateral of the US Companies and Canadian Lender has a valid perfected and first priority security interests in, and liens and first ranking hypothec upon, the Collateral of the Canadian Borrowers subject only to the security interests and liens permitted herein or in the other Financing Agreements (and in each case other than as to such deposit accounts or such other assets for which Agent has not required that its security interests and/or liens be perfected as of the date hereof);
(j) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, which search results shall be in form and substance satisfactory to Agent;
(k) Agent shall have received, in form and substance satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) insuring the priority, amount and sufficiency of the Mortgages and (ii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Agent for protection of its interests;
(l) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of any Borrower and Guarantor (other than US Borrower) organized under the laws of any State of the United States of America and stock certificates representing sixty-five (65%) percent of the issued and outstanding shares of any Borrower or Guarantor organized under the laws of any jurisdiction outside the United States of America and in each case owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(m) Agent shall have received the originals of each of the Intercompany Loan Agreements as duly authorized, executed and delivered by the parties thereto and the terms and conditions thereof shall be in form and substance satisfactory to Agent in good faith and evidence that the Intercompany Loan Agreements are valid and enforceable and in full force and effect, and the terms and conditions thereof shall be reasonably satisfactory to Agent and Agent shall have perfected, first priority security interests in and liens upon all rights, remedies and benefits of US Borrower thereunder, and such security interests and liens shall be acknowledged and agreed to by Guarantors, in each case in form and substance reasonably satisfactory to Agent and the obligations of Guarantors to US Borrower pursuant to such intercompany arrangements and the security interests and liens securing such obligations shall be subject and subordinate in right of payment and in priority to the rights and liens of Agent and Lenders pursuant to a subordination agreement, in form and substance satisfactory to Agent in good faith, by and among US Borrower, Guarantors and Agent;
(n) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(io) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel counsel(s) to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements, the Intercompany Loan Agreements, the security interests, liens and hypothecs of Agent and Canadian Lender with respect to the Collateral, the security interests and liens of US Borrower with respect to the assets and properties of Borrowing Base Guarantors pursuant to the Intercompany Loan Agreements and such other matters as Lender Agent may requestreasonably request (and including opinion letters of US counsel and Canadian counsel to Borrowers and Guarantors); and
(lp) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Lenders (or Agent on behalf of Lenders) making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a1) Lender Agent shall have receivedreceived evidence (including, without limitation, any subordinations or releases of any other liens or security interests in the Collateral required by Agent), in form and substance satisfactory to LenderAgent, all releases, terminations that (a) Agent has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral and any other property which is intended to any assets and properties be security for the Obligations or the liability of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government office;other Financing Agreements; and (b) any purchase money security interest in Borrower's Inventory existing on the date hereof does not extend to the proceeds thereof (other than insurance proceeds and cash proceeds not constituting Accounts, where applicable) unless such purchase money security interest has been subordinated to the security interests of Agent and Lenders in such assets in a manner satisfactory to Agent.
(b2) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authorities;
(c3) no material adverse change act, condition or event shall have occurred in the assets, business or prospects of Borrower or Obligor since February 18, 1999, the date of LenderAgent's latest field examination and no change which has or event shall is reasonably likely to have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the CollateralMaterial Adverse Effect;
(d4) Lender Agent shall have completed a field review of the Borrower's reporting and record keeping methods, Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e5) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments acknowledgements and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgements by lessors, without limitationmortgagees and warehousemen of Agent's security interests in the Collateral, waivers or subordinations by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Agent access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f6) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as first loss payeepayee and additional insured as required by Agent;
(i7) Lender the terms and conditions of the material distribution arrangements between Borrower and Compaq Canada, Hewlett Packard Canada, Toshiba Canada, Microsoft and IBM Canada shall have received environmental audits be satisfactory to Agent and its counsel;
(8) the arrangements for termination of Borrower's Real Property covered by existing receivables securitization program and the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfaction of Borrower's outstanding obligations thereunder shall be satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problemsAgent;
(j9) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender Agent shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrower and Cottontops the Obligors with respect to the Financing Agreements and such other matters as Lender Agent may request; and;
(l10) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to Lender;
(11) the Excess Availability as determined by Agent shall be at least $25,000,000 after giving effect to the initial Revolving Loans and Letter of Credit Accommodations made or to be made hereunder;
(12) Agent shall have received, in form and substance satisfactory to Agent, evidence that Merisel, Inc. shall have (a) repurchased all of its outstanding 12 1/2% Senior Notes due 2004 (the "Senior Notes") or (b) received the necessary consents from the holders of the Senior Notes satisfactory to Agent required to permit the transactions contemplated hereby or (c) deposited with an escrow agent satisfactory to Agent an amount equal to the outstanding principal amount of the Senior Notes on or before the Closing Date plus any repayment premiums and other amounts required to retire the Senior Notes, that such amounts to be used for the sole purpose of funding the repurchase of Senior Notes and the cash control and escrow arrangements satisfactory to Agent have been established or (d) deposited an amount sufficient to redeem or defease the outstanding Senior Notes pursuant to the terms of the indenture governing the Senior Notes; and
(13) Borrower shall have established the Blocked Accounts and drawcheque arrangements and Agent shall have received, in form and substance satisfactory to Agent, all agreements with the depository banks and Borrower with respect to such Blocked Account as Agent may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower.
Appears in 1 contract
Samples: Loan Agreement (Merisel Inc /De/)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall (i) have receivedreceived the Plan of Reorganization, in form and substance satisfactory to Lender, all releasesand (ii) have received a certified copy of the Confirmation Order, terminations in form and such other documents as substance satisfactory to Lender, which Confirmation Order shall be a Final Order;
(b) Lender may request shall have received evidence, in form and substance to evidence and effectuate Lender, that prior to the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it date hereof or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited toconcurrently herewith, (i) UCC termination statements for the Effective Date shall have occurred and the Plan of Reorganization shall be in full force and effect and all UCC financing statements previously filed by it conditions precedent to the effectiveness of the Plan of Reorganization shall have been fulfilled, or any validly waived, including, without limitation, the execution, delivery and performance of them or their predecessorsall of the conditions thereof other than conditions that have been validly waived, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges no motion, action or proceeding shall be pending or filed by any creditor or other party-in-interest to the Bankruptcy Case which could adversely affect the Plan of Reorganization, the business or operations of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor Guarantor or the transactions contemplated by the Financing Agreements, as determined by Lender in favor of such Existing good faith;
(c) Lender or Lendersshall have received evidence, in form acceptable for recording and substance satisfactory to Lender, that each claim of the Noteholders that is "Allowed" (as defined in the appropriate government officePlan of Reorganization) has been irrevocably released, discharged, settled and satisfied in exchange for each Noteholder's ratable share of the 4,840,000 shares of Capital Stock of Safety authorized by Safety on the Effective Date;
(bd) Lender shall have received evidence (including without limitation, any subordinations, discharge or releases of any other liens or security interests in the Collateral that may be required by Lender), in form and substance satisfactory to Lender, that Lender has valid, perfected and first priority security interests in and liens upon the Collateral of US Borrowers and Guarantors, first ranking fixed and floating charges upon the Collateral of UK Borrower and valid, perfected first priority security interests in and first ranking liens upon the Collateral (excluding Inventory) of German Borrower, subject only to the security interests and liens permitted herein or in the other Financing Agreements (it being understood that the security interests of Lender in the Collateral of Automatic Safety Mexico shall not be perfected under the laws of Mexico);
(e) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite limited liability company and corporate action and proceedings (and extracts from the commercial registers of German companies) which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authorities;
(cf) no material adverse change shall have occurred in the assets, assets or business or prospects of any Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or Obligor in any Obligor material respect to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(dg) Lender shall have (i) completed a field review of the Collateral, the Records and such other information with respect to the Collateral as Lender may require request in good faith to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-roll- forwards of Accounts and Inventory through a date not more than three (3) Business Days prior to the date of closing and test counts of the Inventory in a manner satisfactory hereof (or such earlier date which is acceptable to Lender), together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereofhereof and (ii) received appraisals, addressed to Lender, of the Equipment and Real Property from an appraiser and revealing results satisfactory to Lender;
(eh) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in good faith in order to permit, protect and perfect its the security interests and liens of Lender upon the Collateral of US Borrowers, first ranking fixed and floating charges upon the Collateral of UK Borrower and the security interests in and first ranking liens upon the Collateral (excluding Inventory) of German Borrower or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners lessors, mortgagees and lessors of leased premises of Borrower and by warehouses at which Collateral is locatedwarehousemen;
(fi) Lender shall have received an environmental audit of the Real Property of SCFT located in Greenville, South Carolina conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming that (i) SCFT is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with (i) a valid and effective title insurance policy issued by a company acceptable to Lender (A) insuring the depository banks priority, amount and Borrower sufficiency of the Mortgage made by SCFT, (B) insuring against matters that would be disclosed by surveys and (C) containing any legally available endorsements, assurances or affirmative coverage requested by Lender for protection of its interests and the interests, and (ii) a title report issued by a company acceptable to Lender with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereofReal Property located in Galion, duly authorized, executed and delivered by such depository banks and BorrowerOhio;
(gk) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of the direct Subsidiaries of Guarantors and Borrowers incorporated under the laws of any State of the United States of America and stock certificates representing sixty-five (65%) percent of the issued and outstanding shares of Capital Stock of the direct Subsidiaries of Guarantors and Borrowers which are not incorporated under the laws of a State of the United States of America (excluding the Capital Stock of German Borrower, Valentec International and Automotive Safety Czech), in each case together with stock powers duly executed in blank with respect thereto;
(l) the aggregate amount of the Excess Availability as determined by Lender in good faithof Borrowers shall be not less than $8,000,000, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and initial Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hm) Lender shall have received a Borrowing Base Certificate setting forth the Loans available to each Borrower as of the date hereof as completed in a manner satisfactory to Lender and duly authorized, executed and delivered on behalf of such Borrower;
(n) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(ko) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel counsels to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and the security interests, liens, charges and hypothecs of Lender with respect to the Collateral and such other matters as Lender may request (and including opinion letters of US counsel, German counsel and English counsel to Borrowers and Guarantors and counsel of such other foreign jurisdictions as Lender may request; and);
(lp) the initial Loan hereunder shall have been made on or before October 30, 2000;
(q) the Borrowers' and Guarantors' relationship with, and the level of trade support from, their vendors shall be satisfactory to Lender in good faith;
(r) Lender shall have received the Intercreditor Agreement, an access and use agreement from Deutsche Bank and the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender; and
(s) Lender shall have received (i) an ALTA survey certified to Lender, in form and substance acceptable to Lender, with respect of the Real Property of SCFT located in Greenville, South Carolina and (ii) a letter from the applicable municipal authority, in form and substance acceptable to Lender, addressing the issuance of a Certificate of Occupancy.
Appears in 1 contract
Samples: Loan and Security Agreement (Safety Components International Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, a release agreement and all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by BankAmerica Business Credit, Inc., in its capacity as agent for the Existing Lenders to existing working capital lenders of Borrower ("BABC"), of all of its and their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, BABC and such lenders of any interest in and to any assets and properties of Borrower and each Obligorsubsidiary, duly authorized, executed and delivered by it or each of themBABC and, if necessary, such lenders, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it BABC or any of them or their its predecessors, as secured party and Borrower or any Obligorsubsidiary, as debtor and (ii) satisfactions and discharges of any mortgagesa trademark release agreement, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, each case in form acceptable for recording in the appropriate government governmental office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) Lender shall have received, in form and substance satisfactory to Lender, unlimited guarantees of payment of the Obligations by each subsidiary of Borrower in favor of Lender, and, with respect to each subsidiary of Borrower, (i) a security agreement by such subsidiary in favor of Lender, granting Lender a first priority security interest in such subsidiary's assets, and (ii) UCC-1 financing statements with respect thereto, in each case duly authorized, executed and delivered by such subsidiary;
(d) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(ce) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(df) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current agings of receivables, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lenderclosing, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(eg) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(fh) Borrower shall have established the Blocked Accounts and Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the such Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(gi) Lender shall have received evidence, in form and substance satisfactory to Lender, that Borrower has (i) directed the banks at which Borrower maintains deposit accounts for the initial receipt of cash, checks and other items from Borrower's retail store locations to transfer all immediately available funds deposited in such bank only to the Blocked Accounts as required pursuant to Section 6.3 hereof or as otherwise directed by Lender and (ii) notified such banks of the security interests of Lender in such funds and the other Collateral;
(j) Lender shall have received Credit Card Acknowledgements in each case, duly authorized, executed and delivered by the Credit Card Issuers and Credit Card Processors;
(k) the Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall not be not less than $10,000,000 6,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hl) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(im) Lender Borrower shall have received environmental audits of Borrower's Real Property covered by entered into financing arrangements with the Mortgages conducted by an independent environmental engineering firm acceptable Unsecured Term Lender, on terms and conditions satisfactory to Lender, as set forth in agreements and instruments in form and substance satisfactory to Lender, and in form, scope and methodology satisfactory true copies thereof shall have been delivered to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kn) Lender shall have received, in form and substance satisfactory to Lender, such the opinion letters letter of counsel counsel(s) to Borrower, Holdings Borrower and Cottontops each Obligor with respect to the Financing Agreements and the security interests and liens of Lender with respect to the Collateral, the arrangements with the Unsecured Term Lender and such other matters as and Lender may request; and
(lo) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have receivedreceived evidence, in form and substance satisfactory to Lender, all releases, terminations that Lender has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral and any other property which is intended to any assets and properties be security for the Obligations or the liability of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(e) Subject to the Borrower's compliance with the reporting requirements imposed upon it with respect to retail sales locations pursuant to Section 1.12 hereof, Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgements by the lessors, without limitationand warehousemen identified on Schedule 4.1(e) hereto of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kg) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and;
(lh) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender; and
(i) the Excess Availability as determined by Lender in accordance with this Agreement, as of the date hereof, shall be not less than $1,500,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder and any distribution to any direct or indirect parent or grandparent company, or any related company, which distributions shall be limited to repayment of the inter-corporate obligations as reported to the Lender prior to the date hereof.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower and its subsidiaries of their respective financing arrangements with Borrower and its subsidiaries and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligorsubsidiary, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligorsubsidiary, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor subsidiary in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;proceedings
(cd) no material adverse change Material Adverse Change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateralexamination;
(de) Lender shall have received a Borrowing Base Certificate setting forth the Revolving Loans available to Borrower as of the end of Borrower's fiscal month ended on or about October 31, 1997, as completed in a manner satisfactory to Lender and duly authorized, executed and delivered on behalf of Borrower;
(f) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(eg) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgements by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;
(f) Lender shall have received, in form remedies and substance satisfactory to Lender, all necessary agreements otherwise deal with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderCollateral;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) the Combined Excess Availability, as determined by Lender as of the date hereof, shall have received environmental audits be not less than $5,000,000 after giving effect to the initial Loans made or to be made and Letter of Borrower's Real Property covered by Credit Accommodations issued or to be issued in connection with the Mortgages conducted by an independent environmental engineering firm acceptable initial transactions hereunder and after giving effect to Lender, the initial Canadian Loans made or to be made and in form, scope and methodology satisfactory Canadian Letter of Credit Accommodations issued or to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;be
(j) Lender shall have received, in form and substance reasonably satisfactory received evidence that Borrower has provided each Governmental Authority to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing whose jurisdiction it or any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interestssubsidiaries is subject, with all required notices (if any) with respect to the Financing Agreements, the Canadian Financing Agreements and all Obligations and Collateral hereunder and thereunder;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to BorrowerBorrower and Video King Systems, Holdings and Cottontops Inc. with respect to the Financing Agreements and with respect to such other matters as Lender may request; and, including, without limitation, (i) the status of the Obligations of Borrower to Lender and Congress (Canada) as "Senior Indebtedness" and "Designated Senior Indebtedness," under the Indenture governing the Subordinated Notes and (ii) the non-contravention of any provision of the Subordinated Note Agreements by reason of the execution, delivery or performance of the Financing Agreements and Canadian Financing Agreements (including, without limitation, the loans and other financial accommodations and guaranties hereunder and thereunder and the granting of liens and security interests as herein and therein provided);
(l) Lender shall have received, in form and substance satisfactory to Lender, a guarantee of payment by each Guarantor in favor of Lender of all Obligations secured by a first and only security interest in favor of Lender granted by each Guarantor in all of its existing and future assets (except real property);
(m) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender; and
(n) the Canadian Financing Agreement, and all instruments and documents thereunder shall have been duly executed and delivered by the Canadian Borrower and Congress (Canada), in form and substance satisfactory to Congress (Canada), and all of the conditions precedent to the initial Loans under the Canadian Loan Agreement contained in Sections 4.1(a) through 4.1(m) thereof, shall have been fully satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Stuart Entertainment Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any ObligorBorrower, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority, which may be delivered to Agent in trust for release concurrently with, and subject to, payment and satisfaction in full of all Indebtedness owing to the Existing Lenders (other than the Existing Letters of Credit) in connection with Borrowers' termination of their existing financing arrangements with Existing Lenders;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower as is set forth herein and such document as shall set forth the organizational identification number of each Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of each Borrower consisting of Borrowers' two (2) inventory distribution centers located at 125 Castle Road, Seacaucus, New Jersey 07094 and by warehouses at which Collateral is located8500 Baycenter Road, Xxxxxxxxxxxx, Xxxxxxx 00000, xx xxxxxxxxxx and xxxxxxxxxx xx xxxxx Xxxxxxxxxx xx xxxxxxx xxx xx Persons who may be from time to time in possession of Borrowers' computer readable Records with respect to the Inventory or Accounts;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 40,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower, as the case may be and each bank where such Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower, as the case may be (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(h) Lender Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has (or will have acquired, concurrently with the making of the initial Revolving Loans hereunder) a valid perfected first priority security interest in all of the Collateral;
(i) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation of each Borrower, the jurisdiction of the chief executive office of each Borrower and all jurisdictions in which assets of Borrowers are located, which search results shall be in form and substance satisfactory to Agent;
(j) Agent shall have received Credit Card Acknowledgments in each case, duly authorized, executed and delivered by the Credit Card Issuers and Credit Card Processors other than American Express and Midwest Payment Systems, Inc. ("Midwest"), and in the case of American Express and Midwest, Borrowers shall have, concurrently with the execution hereof, executed and delivered to each of American Express and Midwest an irrevocable authorization and direction letter, in form and substance satisfactory to Agent, regarding payment of Credit Card Receivables to Borrowers by each of American Express and Midwest;
(k) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(il) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and such other matters as Lender Agent may request; and
(lm) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have receivedreceived a certified copy of the Interim Order, entered by the Bankruptcy Court after a hearing under Bankruptcy Rule 4001(c)(2) authorizing and approving the Financing Agreements and the transactions contemplated thereby on an interim basis pending a hearing on the Final Order, which Interim Order shall be in form and substance satisfactory to Lender and its counsel. The Interim Order shall have not been vacated, reversed, modified, or amended. No appeal from the Interim Order shall be pending.
(b) Lender shall have received evidence, including, without limitation, lien and judgment search results with respect to the Borrower and Xxxxxx, Inc. in all applicable jurisdictions, in form and substance satisfactory to Lender, all releases, terminations that Lender has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral and any other property which is intended to any assets and properties be security for the Obligations or the liability of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lendersrespect thereof, subject only to the security interests and liens permitted herein, in form acceptable for recording the other Financing Agreements or in the appropriate government office;Order.
(bc) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(ef) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation: (i) acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;
(f) Lender shall have received, in form remedies and substance satisfactory to Lender, all necessary agreements otherwise deal with the depository banks Collateral; (ii) an agreement from each charge, credit, or debit card issuer and Borrower charge, credit, or debt card sale processor with respect to each charge, credit and debit card now accepted by Borrower, in which Borrower notifies such person of Lender's security interest in the amounts due from such Person to Borrower and irrevocably instructs such Person to pay such amounts directly to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAccount, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
in which such Person waives any security interest in such amounts; (iiii) Lender shall have received environmental audits an agreement from each Person in possession or control of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lendermailing or customer lists, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence or any electronic or other medium of any material environmental problems;
(j) Lender shall have receivedstorage thereof, in form and substance reasonably satisfactory which such person agrees to Lender, a valid and effective title insurance policy issued by a company and agent acceptable deliver such list or storage medium to Lender at Lender's request; (iiv) insuring an agreement with each Person who, on behalf of Borrower, licenses or rents Borrower's mailing or customer lists to third parties, or collects the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances proceeds from such licenses or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have receivedrentals, in form which such Person agrees to pay all amounts due to Borrower in respect of such collections directly to the Blocked Account and, upon Lender's request when an Event of Default has occurred and substance satisfactory is continuing, to comply with Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops 's instructions with respect to the Financing Agreements all such licenses and such other matters as Lender may requestrentals; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no change which has had or could be reasonably expected to have a Material Adverse Effect shall have occurred since the date of Lender’s latest field examination and no change or event shall have occurred which would impair the ability of the Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower, the results of which shall be satisfactory to Lender, not more than five (5) Business Days prior to the date hereof;
(e) Lender shall have received evidence of insurance and loss payee or additional insured, as applicable, endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee or additional insured as applicable;
(f) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements, the security interests and liens of Lender and such other matters as Lender may request;
(g) Lender shall have received a certificate regarding the solvency of Borrower, in form and substance satisfactory to Lender, executed by the chief executive officer and the chief financial officer of Borrower;
(h) Lender shall have received, in form and substance satisfactory to Lender, a pledge of one hundred percent (100%) of the common stock, or other equity interests, in any Person owned by SSG (other than Sport Supply Group Asia, Ltd., a Hong Kong corporation, with respect to which Lender shall have received a pledge of sixty-five percent (65%) of such stock);
(i) Lender shall have received a certificate executed by the chief executive officer and the chief financial officer of Borrower, setting forth in reasonable detail the sources and uses of funds in the transactions contemplated herein;
(j) Lender shall have received, in form and substance satisfactory to Lender, written instructions from Borrower Representative directing the application of the initial Revolving Credit Loans or Letter of Credit Accommodations, if any, on the date hereof pursuant to this Agreement;
(k) the Excess Availability, as determined by Lender, as of the date hereof shall be not less than $2,000,000 after giving effect to the initial Loans made or to be made and the Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(l) Lender shall have received a licensor agreement, in form and substance satisfactory to Lender, for each trademark or any other intellectual property which Borrower licenses set forth on Schedule 4.1(l), executed by Borrower and the licensor;
(m) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorObligor (or payoff letters in form and substance satisfactory to Lender including the agreement of such existing lender or lenders to effectuate such terminations and releases promptly upon receipt of the payoff amount set forth therein), duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(bn) all requisite corporate action Lender shall have received from Borrower a report of Borrower’s slow-moving Inventory, based upon Inventory on-hand versus quantity sold for the twelve month period ending February 23, 2001, and proceedings in connection Lender shall be satisfied with this Agreement and the result thereof; and
(o) Lender shall have received the other Financing Agreements shall be in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which negative pledge agreement for each case shall be satisfactory to Lender, not more than three (3location where Borrower owns Real Property) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance reasonably satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Collegiate Pacific Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, :
(i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and debtor, and
(ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended as security for the Obligations or the liability of any Obligor in respect thereto, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) Lender shall have received the CYI Loan Agreement duly executed by CYI, in form and substance satisfactory to Lender and all conditions precedent set forth therein shall have been satisfied in a manner acceptable to Lender;
(e) Lender shall have received, in form and substance satisfactory to Lender, evidence that the Purchase Agreements have been fully executed and delivered by and to the appropriate parties thereto and the transactions contemplated under the terms of the Purchase Agreements have been consummated;
(f) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(dg) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(eh) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(fi) The NationsCredit Flooring Line shall have been established and in effect on terms and conditions satisfactory to Lender and Lender and its counsel shall have received and reviewed all financing agreements entered into by Borrower in connection therewith;
(j) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks NationsCredit Intercreditor Agreement, as acknowledged and Borrower agreed to by Borrower, and CYI providing for such parties' relative rights and priorities with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereofassets and properties of Borrower and CYI and related matters, duly authorized, executed and delivered by such depository banks and BorrowerNationsCredit;
(gk) Lender shall have been satisfied that an acceptable system of reporting has been established by NationsCredit through which NationsCredit will report to Lender on a daily basis, all liabilities incurred by Borrower and CYI in connection with its floor plan financing arrangement with NationsCredit, Inventory financed by NationsCredit on order with vendors, and returns by Borrower and CYI of Inventory to vendors and credited to NationsCredit;
(l) Lender shall have received, in form and substance satisfactory to Lender, a Guarantee by Borrower in favor of Lender, guaranteeing the Excess Availability as determined obligations of CYI under the CYI Loan Agreement, together with a Security Agreement securing the obligations under such Guarantee;
(m) Lender shall have received, in form and substance satisfactory to Lender, a Guarantee by CYI in favor of Lender, guaranteeing the Obligations herein, together with a Security Agreement securing the obligations under such Guarantee;
(n) Lender shall have received, in good faithform and substance satisfactory to Lender, Subordination agreements pursuant to which the security interests and liens in favor of Ingrxx Xxxro Inc., a Delaware corporation, are subject to and subordinate in priority to the security interests and liens of Lender;
(o) Lender shall have received, in form and substance satisfactory to Lender, a continuing guarantee duly executed and delivered by Rechxxxx xxxranteeing the Obligations up to One Million Five Hundred Thousand Dollars ($1,500,000), together with his personal financial statements;
(p) Lender shall have received, in form and substance satisfactory to Lender, a collateral assignment from Borrower to Lender of that certain Promissory Note dated February 18, 1998 in the original principal amount of Two Million Dollars ($2,000,000) by Orie Xxxxxxxx xx favor of Borrower, as well as any other notes or instruments evidencing from loans Borrower to Rechxxxx;
(q) Lender shall have received current agings of receivables, current perpetual inventory records and/or rollforwards of accounts and inventory through the date hereof, shall be not less than $10,000,000 after giving effect together with supporting documentation sufficient for Lender to accurately identify and verify the eligible Collateral as of or prior to the initial Loans made or date hereof in a manner satisfactory to be made hereunder Lender, including documentation with respect to inventory in-transit and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderinventory at third-party locations;
(hr) Lender shall have received, in form and substance satisfactory to Lender, projections of Borrower's profit and loss and balance sheet, all prepared on a monthly basis through December 31, 1998 which shall reflect the loans to Orie Xxxxxxxx xx the aggregate principal amount of Three Million Dollars ($3,000,000);
(s) Lender shall have received, in form and substance satisfactory to Lender, an agreement with respect to the Blocked Accounts, pursuant to Section 6.3(a) hereof, duly executed by Lender, Borrower and the applicable depository bank;
(t) Lender shall have received and reviewed to its satisfaction any and all licensing agreements which Borrower has in place with its vendors, including, without limitation, Microsoft Corporation;
(u) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(iv) Lender shall have received environmental audits from Borrower a plan identifying the proposed management of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kw) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements, the Purchase Agreements and such other matters as Lender may request;
(x) the combined Excess Availability of Borrower and CYI as determined by Lender, as of the date hereof, shall be not less than One Million Dollars ($1,000,000) after giving effect to the initial Loans made or to be made, the Letter of Credit Accommodations issued or to be issued hereunder and under the CYI Loan Agreement and the payment of all fees and expenses payable upon the consummation of the initial transactions contemplated by this Agreement and the CYI Loan Agreement; and
(ly) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance reasonably satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower Borrowers and Guarantor and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each ObligorGuarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any ObligorGuarantor, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor Guarantor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings of Borrowers and Guarantor in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation (or equivalent document) of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, assets or business or prospects of Borrower Borrowers since February 18, 1999, the date of Lender's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner reasonably satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Little Switzerland Inc/De)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have receivedreceived evidence, in form and substance satisfactory to Agent, that Agent, for the benefit of Lender, all releases, terminations has valid perfected and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest first priority security interests in and liens upon the Collateral and any other property which is intended to any assets and properties be security for the Obligations or the liability of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereof, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all All requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no No material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since February 18, 1999, the date of LenderAgent's latest field examination and no change or event shall have occurred which would impair the ability of Borrower Borrowers or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender Agent to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is locatedincluding Waivers;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(ig) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and such other matters as Lender Agent may request; and;
(lh) the other The Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to Lender;
(i) Statoil shall have executed an intercreditor agreement with Agent;
(j) the Processing Agreement shall be in full force and effect and Crown shall not be in default thereunder and Crown shall not have received any notice of proposed cancellation, termination or suspension of the Processing Agreement by Statoil; and
(k) the Excess Availability as determined by Agent, on and as of the date hereof, shall not be less than $15,000,000 after giving effect to any Loans made or to be made on the date hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Crown Central Petroleum Corp /Md/)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by and Lender shall have satisfied itself that it has valid, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended as security for the Obligations, or any the liability of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender respect thereto, subject only to the security interests and liens permitted herein or Lenders, in form acceptable for recording in the appropriate government officeother Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and of such other information with respect to the Collateral financial information, projections, budgets, business plans and cash flows as Lender may require shall reasonably request from time to determine the amount of Revolving Loans available to Borrower (time, including, without limitationbut not limited to, current agings of receivables, current perpetual inventory records and/or roll-forwards rollforwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lenderclosing, together with such supporting documentation, including documentation as may be necessary with respect to Inventory in-transit, goods in bonded warehouses or appropriateat other third-party locations, and other documents and information that will enable Lender to accurately identify and verify the Collateral)eligible Collateral at or before closing in a manner satisfactory to Lender, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgments by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kg) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(h) the Excess Availability as determined by Lender as of the date hereof, shall be not less than Eight Million Dollars ($8,000,000) after giving effect to the initial Loans made or to be made hereunder and the payment of all fees and expenses payable upon the consummation of the initial transactions contemplated by this Agreement;
(i) Lender shall have received, in form and substance satisfactory to Lender and its counsel, the assignment of all of Borrower's rights in registered patents, trademarks, service marks and copyrights, as Collateral hereunder, on Lender's standard forms of Collateral Assignments;
(j) Lender shall have received, in form and substance satisfactory to Lender, an executed copy of a Blocked Account Agreement, pursuant to Section 6.3(ii) hereof, among Lender, Borrower and Bank of America; and
(lk) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender; and
(l) Any holders of a security interest in Borrower's assets including, without limitation, vendors of Inventory to Borrower, shall have executed such intercreditor and subordination agreements in form and substance satisfactory to Lender; and
(m) Lender shall have received the unconditional continuing guaranty of Borrower's Parent and a Security Agreement executed by the Parent, both on Lender's standard form, together with documents relating thereto; and
(n) Lender shall have received executed Bailee Agreements, in such form as Lender shall specify, executed by all of Borrower's freight forwarders and freight expeditors. In the event, in the future, Borrower shall desire to use the services of a different freight forwarder or freight expeditor, Borrower shall first cause such freight forwarder or freight expeditor to execute and deliver to Lender a Bailee Agreement in such form as Lender shall specify.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance reasonably satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower Marine Midland Bank, N.A. of their respective its financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of themit, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their its predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officedebtor;
(b) Lender shall have received evidence, in form and substance reasonably satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of Borrower in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateralexamination;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be reasonably satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower and Obligors of their respective financing arrangements with Borrower and each Obligor and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations (including all assets of Champion Canada and each of Borrower's other Subsidiaries (other than Western Rebuilders) and all capital stock owned by Borrower in each of Borrower's Subsidiaries) or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have received appraisals of the Real Property, Equipment and Inventory, in form and substance acceptable to Lender;
(f) Lender shall have received a copy of the management letter issued to Borrower by its accountants as of the period ending December 31, 1999, in form and substance acceptable to Lender;
(g) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(eh) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $1,200,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(i) Lender shall have received environmental audits of Borrower's plants and the Real Property conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, a Set-Off Waiver Letter executed by each of Advance Auto and Xxxx Deere and Co., an acknowledgement of the Core Return and Stock Adjustment Policies by AutoZone, acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hl) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(km) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings Borrower and Cottontops its Subsidiaries with respect to the Financing Agreements and such other matters as Lender may requestrequest (including an opinion letter of Canadian counsel to Borrower and Champion Canada and opinion letters of local counsel to Borrower in each jurisdiction where any Mortgage is to be recorded);
(n) Lender shall have received a duly executed pledge agreement in favor of Lender, delivered by Borrower with respect to its equity interests in each Subsidiary of Borrower;
(o) Lender shall have received a duly executed Guaranty and Security Agreement delivered by Champion Canada and each other Subsidiary of Borrower (other than Western Rebuilders) in favor of Lender;
(p) Lender shall have received a report from Borrower of core return eligibility status by customer, units and dollars, as of the date hereof; and
(lq) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower Borrowers and Guarantors and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each ObligorGuarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements and PPSA termination statements for all PPSA financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any ObligorGuarantor, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, hypothecs, deeds of trust or deeds to secure debt by any Borrower or any Obligor Guarantor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers and Guarantors since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may reasonably require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which each case shall be reasonably satisfactory to LenderAgent and Lenders, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of each Borrower and Guarantors and by processors and warehouses at which Collateral is located;
(f) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all necessary agreements with the depository banks collateral assignment of the life insurance policy or policies maintained by Borrower on the lives of William Hay and Borrower with respect to Denise Hay which shall be in the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borroweraggregate amount xx xxx xxxx than $0,000,000 for each of them;
(g) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 7,500,000 after giving effect to the initial Revolving Loans and Term Loan A made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(i) Agent shall have received Credit Card Acknowledgments in each case, duly authorized, executed and delivered by the Credit Card Issuers and Credit Card Processors;
(j) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral;
(k) Agent shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, which search results shall be in form and substance satisfactory to Agent;
(l) Agent shall have received, in form and substance satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Lender Agent: (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender Agent for protection of its interests;
(km) Lender Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(n) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(o) Agent shall have received, in form and substance satisfactory to LenderAgent and Lenders, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request; and
(lp) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Thane International Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(ai) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and a Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by a Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(bii) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower as is set forth herein and such document as shall set forth the organizational identification number of such Borrower, if one is issued in its jurisdiction of incorporation);
(ciii) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(div) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lenderclosing, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three seven (37) Business Days prior to the date hereof;
(ev) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may reasonably deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises Real Property of each Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(gvi) the Excess Availability as determined by Lender in good faithLender, as of the date hereof, shall be not less than $10,000,000 2,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hvii) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements by and among Lender, each Borrower and each bank where such Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and such Borrower (or Lender shall be the bank's customer with respect to such deposit account, as Lender may specify);
(viii) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral;
(ix) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation or organization of each Borrower, the jurisdiction of the chief executive office of each Borrower and all jurisdictions in which assets of any Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(x) Lender shall have received with respect to each parcel of Real Property to be subject to a Mortgage, a title report as of a recent date which discloses any liens on such Real Property and which is otherwise satisfactory to Lender in form and substance;
(xi) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kxii) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrowers with respect to the Financing Agreements and such other matters as Lender may request; and;
(lxiii) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender; and
(xiv) Lender shall have received the final Plan of Reorganization, the final Disclosure Statement and the final Confirmation Order confirming the Plan of Reorganization; such final Plan of Reorganization, final Disclosure Statement and final Confirmation Order each shall be in form and substance satisfactory to Lender; such final Confirmation Order shall be in full force and effect and shall not have been stayed pending any appeal, no appeal or petition for review or for rehearing shall have been taken or shall be pending, not less than 30 days shall have elapsed since entry of the Confirmation Order and Lender shall have received evidence satisfactory to each demonstrating such facts; the Confirmation (as defined in the Confirmation Order) shall have occurred; and the Plan of Reorganization shall have become effective in accordance with its terms.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower Borrowers and each any Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officedebtor;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving the Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(ef) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerAgreements;
(g) the aggregate amount of the Excess Availability as determined by Lender in good faith, as of the date hereof, Borrowers shall be not less than $10,000,000 5,000,000 as of the date hereof (calculating Excess Availability for this purpose without regard to the Maximum Credit), after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received, in form and substance satisfactory to Lender, evidence that all Indebtedness of Borrowers and Guarantors evidenced by or arising under the Private Notes and the other Private Note Agreements has been paid and satisfied in full and Borrowers and Guarantors have no other or further obligations or liabilities thereunder or in connection therewith;
(i) Lender shall have received evidence, in form and substance satisfactory to Lender, that all Indebtedness of Huntco Steel evidenced by or arising under the Promissory Note, dated January 30, 1997, issued by Huntco Steel payable to Huntco Nevada (as assignee of Huntco) has been paid and satisfied in full and such note marked "paid in full" or "cancelled";
(j) Lender shall have received evidence, in form and substance satisfactory to Lender, that on or about the date hereof Huntco Nevada shall have contributed as capital to Huntco Steel such portion of the existing Indebtedness of Huntco Steel to Huntco Nevada so that after giving effect to such capital contribution the Net Worth of Huntco Steel is not less than $10,000,000;
(k) Lender shall have received evidence, in form and substance satisfactory to Lender, that the lessor and sublessor of the Real Property of Huntco Steel located in Catoosa, Oklahoma have agreed to extend the current month-to-month lease with respect thereto for a period of not less than four (4) months after the date hereof;
(l) Lender shall have received title reports with respect to the Real Property subject to the Mortgages, in form and substance satisfactory to Lender;
(m) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(jn) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel counsel(s) to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and the security interests and liens of Lender with respect to the Collateral and such other matters as Lender may request; and
(lo) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements; without limiting the foregoing, Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower Borrowers of their respective financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties property of each Borrower and each Obligor, duly authorized, executed and delivered by it or each of themit, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their its predecessors, as secured party party, and any Borrower or any Obligor, as debtor debtor, and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of any Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to Lender, not more than three seven (37) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements acknowledgements by owners lessors and lessors warehousemen of leased Lender's security interests in the Collateral, waivers or subordination and standstill agreements by such persons of any security interests, liens or other claims by such persons to the Collateral, and agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;
remedies and otherwise deal with the Collateral; (f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Decorative Home Accents Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower NationsBank, N.A., as agent, of their respective its financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower Borrowers and each Obligor, duly authorized, executed and delivered by it or each of themit, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their its predecessors, as secured party and Borrower Borrowers or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower Borrowers or any Obligor in favor of such Existing Lender NationsBank, N.A., as agent, or Lendersa trustee acting on its behalf, in form acceptable for recording in the appropriate government governmental office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) Lender shall have received, in form and substance satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgage and (ii) containing any legally available endorsements, assurances or affirmative coverage requested by Lender for protection of its interests;
(d) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(ce) no material adverse change shall have occurred in the consolidated assets, business or prospects of Borrower Borrowers since February 18, 1999, the date of Lender's latest field examination and no material change or event shall have occurred which would impair the ability of Borrower either or both Borrowers or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(df) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrowers, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(eg) Lender shall have received, in form and substance satisfactory to Lender, a guarantee of payment by each Borrower with respect to the Obligations owed by the other Borrower;
(h) Lender shall have received, in form and substance satisfactory to Lender (i) an agreement with and duly authorized, executed and delivered by NationsBank, N.A., individually and as agent, as agreed to and acknowledged by Borrowers, providing for the relative rights and priorities of such lender and Lender in certain cash collateral, documents of title and goods covered thereby, relating to goods that are purchased by One Price under outstanding letters of credit issued by such lender prior to the date hereof, and related matters, and (ii) a letter agreement between NationsBank, N.A., individually and as agent, and One Price, duly authorized, executed and delivered by such lender and One Price, setting forth such lender's agreements with One Price regarding such outstanding letters of credit referred to in clause (i);
(i) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is locatedremedies and otherwise deal with the Collateral;
(fj) Borrowers shall have established the Blocked Accounts and Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower Borrowers with respect to the such Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and BorrowerBorrowers;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hk) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreementsoriginal letters executed by Borrowers, in form and substance satisfactory to Lender, notifying each of the depository banks used by Borrowers for the deposit of Retail Store receipts from the sale of merchandise and certificates by Borrowers for the deposit of insurance policies and/or endorsements naming other proceeds of Collateral or other property which is security for the Obligations of Lender's security interest therein and irrevocably authorizing and directing each such bank to send all funds and deposits with such banks only to the Blocked Accounts as required pursuant to Section 6.3 hereof or as Lender as loss payeeotherwise directs;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(kl) Lender shall have received, in form and substance satisfactory to Lender, an agreement by RGIS Inventory Specialists, Inc. or another inventory counting service used by Borrowers and acceptable to Lender pursuant to which such opinion letters inventory counting service shall agree to promptly deliver directly to Lender copies of counsel to Borrower, Holdings and Cottontops all inventory reports or other reports prepared by it with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been Borrowers, duly authorized, executed and delivered to Lender, in form and substance satisfactory to Lender.by RGIS Inventory Specialists,
Appears in 1 contract
Samples: Loan and Security Agreement (One Price Clothing Stores Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agents and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAdministrative Agent, and Lender Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Administrative Agent may have reasonably requested in connection therewith, such documents where requested by Lender Administrative Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(b) Agents shall have received evidence, in form and substance satisfactory to Agents, that Collateral Agent continues to have a valid perfected first priority security interest in all of the Collateral; and any other property which is intended to be security for the Obligation or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreement;
(c) no material adverse change Agents shall have occurred in received and reviewed lien and judgment search results for the assets, business or prospects jurisdiction of incorporation of Borrower since February 18, 1999, and the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any jurisdiction of the other Financing Agreements chief executive office of Borrower, which search results shall be in form and substance satisfactory to which it is a party or of Lender to enforce the Obligations or realize upon the CollateralAgents;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agents shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to LenderAgents, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender Agents may reasonably request; and;
(le) Administrative Agent shall have received evidence of payment by Borrower of all accrued and unpaid fees, costs and expenses to the extent then due and payable on the Closing Date, together with all reasonable legal expenses and reasonable attorneys’ fees incurred by the Agents, plus such additional amounts as shall constitute the Agents’ reasonable estimate of reasonable legal expenses and reasonable attorneys’ fees incurred or to be incurred by the Agents through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between Borrower and the Agents);
(f) Administrative Agent shall have received evidence of the existence of insurance required to be maintained pursuant to Section 9.5, together with evidence that the Collateral Agent continues to be named as a lender’s loss payee under Borrower’s property insurance policy and each Agent has been named as an additional insured under Borrower’s liability insurance policy;
(g) the other Financing Agreements and all instruments and documents hereunder and thereunder required by Administrative Agent shall have been duly executed and delivered to LenderAdministrative Agent, in form and substance satisfactory to LenderAdministrative Agent, including, without limitation, the agreements, instruments and documents set forth on the closing checklist attached as Exhibit E hereto.
Appears in 1 contract
Samples: Loan and Security Agreement (Ulta Salon, Cosmetics & Fragrance, Inc.)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days business days prior to the date hereof;
(ef) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;other
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(ih) Lender shall have received environmental audits of Borrower's plants and the Real Property covered by the Mortgages conducted by an independent environmental engineering firm reasonably acceptable to Lender, and in form, scope and methodology reasonably satisfactory to Lender, confirming (i) Borrower is in substantial compliance with all material applicable Environmental Laws and that any non-compliance therewith has not and could not reasonably be expected to result in a material adverse effect upon Borrower's assets and business operations, and (ii) the absence of any material environmental problems;
(ji) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(j) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower Congress Financial Corporation of their respective its financing arrangements with Borrower Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower Borrowers and each Obligor, duly authorized, executed and delivered by it or each of themit, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their its predecessors, as secured party and Borrower Borrowers or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officedebtor;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender: (i) of G+G's corporate good standing in the State of Delaware, and its qualification as a foreign corporation to do business in the states of California, Florida, Illinois, Maryland, Massachusetts, New York, Ohio and Texas; (ii) of searches, performed as of a recent date, against G+G and its assets and properties in each jurisdiction deemed appropriate by Lender, including UCC, tax and judgment lien searches and (iii) that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since February 18, 1999, the earlier of (i) the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits receipt of Borrower's Real Property covered by most recently completed financial statements for the Mortgages conducted by an independent environmental engineering firm acceptable to Lenderyear-to-date period ended in December, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops with respect to the Financing Agreements and such other matters as Lender may request; 2000 and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations evidence that the Purchase Agreements and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, Merger Documents have been duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender or Lenders, in form acceptable for recording in the appropriate government officeparties thereto and shall have received true and correct copies thereof;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the articles or certificate of incorporation or articles of organization, as the case may be, of Borrower and each Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower or such Guarantor as is set forth herein and such document as shall set forth the organizational identification number of Borrower or such Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assetsbusiness, business assets or prospects of Borrower since February 18Parent and its Subsidiaries, 1999taken as a whole, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateraloccurred;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral and business, operations and assets of Borrower, Guarantors and Target as Lender Agent may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory of Borrower and Target through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by processors and warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Closing Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 4,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, Borrower and each bank where Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(h) Lender Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral (including, without limitation, all assets of Target upon consummation of the Merger), other than Liens permitted under this Agreement;
(i) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation or organization of Borrower, each Guarantor and Target, the jurisdiction of the chief executive office of Borrower, each Guarantor and Target and all jurisdictions in which assets of Borrower, each Guarantor and Target are located, which search results shall be in form and substance satisfactory to Agent;
(j) Agent shall have received the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrower, to the extent that the equity interest that constitutes such Capital Stock is certificated, in each case together with stock powers duly executed in blank with respect thereto;
(k) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(il) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, such opinion letter of counsel(s) to Borrower, Guarantors and Target with respect to the Purchase Agreements, the effectiveness of the Merger, the Financing Agreements and the security interests and liens of Agent and Lenders with respect to the Collateral and such other matters as Agent may request;
(m) Agent shall have received, in form and substance satisfactory to Agent, a pro forma balance sheet of Borrower, prepared on a consolidating basis, reflecting the initial transactions contemplated hereunder, including, but not limited to, (i) the consummation of the acquisition of the Purchased Stock by Borrower from Sellers and the other transactions contemplated by the Purchase Agreements and the Merger and (ii) the Loans and Letter of Credit Accommodations provided by Agent to Borrower on the date hereof and the use of the proceeds of the initial Loans as provided herein, accompanied by a certificate, dated of even date herewith, of the chief financial officer of Borrower, stating that such pro forma balance sheet, subject to post-closing adjustments, represents the reasonable, good faith opinion of such officer as to the subject matter thereof as of the date of such certificate;
(n) Agent shall have received, in form and substance satisfactory to Agent, evidence that Borrower has received a cash contribution or advance of not less than $20,000,000 and such proceeds have been applied to the cash portion of the purchase price of the Purchased Stock payable pursuant to the Stock Purchase Agreement;
(o) Agent shall have received evidence, in form and substance satisfactory to Agent, that all conditions precedent to the consummation of the purchase of Purchased Stock by Borrower shall have been satisfied except payment of the purchase price therefor, and that upon the making of the initial Loans hereunder, Borrower shall own the Purchased Stock and the Merger shall be consummated;
(p) Agent shall have received a valuation and/or appraisal of the trademarks of Target, the results of which shall be satisfactory to Agent;
(q) Agent shall have received, in form and substance satisfactory to Agent, a valid and effective mortgagee's title insurance policy issued by a company and agent acceptable to Lender Agent (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender Agent for protection of its interests;
(kr) Lender Agent shall have received surveys with respect to the Real Property located in Fayetteville, North Carolina subject to the Mortgages, and such surveys shall be satisfactory in form and substance to Agent;
(s) Agent shall have received the appraisals of the Equipment and Real Property of Target, the results of which shall be satisfactory to Agent;
(t) Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters a copy of counsel to Borrower, Holdings and Cottontops with respect the Seller Note;
(u) to the Financing extent such consent shall not be expressly set forth in the Purchase Agreements, Agent shall have received, in form and substance satisfactory to Agent, the agreement of Sellers consenting to the collateral assignment by Borrower or any Obligor to Agent of all of Borrower's and such Obligor's rights and remedies and claims for damages and other relief under the Purchase Agreements and granting Agent such other matters rights as Lender Agent may requestrequire, duly authorized, executed and delivered by Sellers;
(v) Agent shall have received a duly executed copy of the Parent Revolving Loan Agreement and evidence of the satisfaction of all conditions precedent to the effective thereof;
(w) Agent shall have received an accounts payable report for Target and Borrower as of the Agreement Date, in form acceptable to Agent; and
(lx) the other Financing Agreements (including, without limitation, the Guarantee, the Intercreditor Agreement, the Pledge Agreement, and the Subordination Agreement) and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each ObligorBorrower, duly authorized, executed and delivered by it or each JPMorgan Chase Bank, formerly known as The Chase Manhattan Bank successor by merger to Xxxxxx Guaranty Trust Company of themNew York on behalf of the other Existing Lenders, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any ObligorBorrower, as debtor (and the authorization to file the same) and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, assets or business or prospects of Borrower since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no material change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may in good faith require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which each case shall be satisfactory in good faith to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent in good faith, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and by processors and warehouses at which Collateral is located;
(f) Lender shall have received, in form and substance satisfactory to Lender, all necessary agreements with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
(g) the Excess Availability as determined by Lender in good faithAgent, as of the date hereof, shall be not less than $10,000,000 20,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(hg) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, Deposit Account Control Agreements by and among Agent, Borrower and each bank where Borrower has a deposit account (other than accounts used exclusively for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Borrower's salaried employees or as Agent may otherwise agree) with deposits therein at any time in excess of $10,000 in any one case, in each case, duly authorized, executed and delivered by such bank and Borrower, as the case may be (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify, PROVIDED, THAT, there are not more than six (6) accounts with less than $10,000 in deposits as specified in the Information Certificate);
(h) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral (except as to the priority of the security interest of Agent, as may be otherwise permitted under Section 9.8 hereof);
(i) Agent shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Agent;
(j) Agent shall have received originals of the shares of the stock certificates representing (i) one hundred percent (100%) of the issued and outstanding shares of the Capital Stock of the direct and indirect Subsidiaries of Borrower which are not Foreign Subsidiaries (in each case together with stock powers duly executed in blank with respect thereto) and (ii) sixty-six (66%) percent of the issued and outstanding shares of Capital Stock of the direct Subsidiaries of Borrower which are Foreign Subsidiaries (other than such Subsidiaries which are organized under the laws of France, Belgium, Netherlands and New Zealand, since under such laws no certificates are issued and other than such other Subsidiaries as Agent may specify), EXCEPT with respect to the shares of Capital Stock of AEP Industries Packaging Espana S.A., Agent shall have received evidence satisfactory to it that such shares shall have been delivered to a "licensed broker" under Spanish law acting as agent solely on behalf of and in accordance with the instructions of Agent with respect to such shares;
(k) Agent shall have received evidence, in form and substance satisfactory to Agent, of the notation or registration of the pledge to Agent of the shares of Capital Stock of the direct Subsidiaries of Borrower which are organized under the laws of France, Belgium, Netherlands and New Zealand in the appropriate records of such Person;
(l) Agent shall have received, in form and substance satisfactory to Agent, projected consolidated and consolidating financial statements of Borrower and its Subsidiaries for the fiscal year ending October 31, 2002 (including forecasted income statements, cash flow statements and balance sheets, but as to the cash flow statements on a consolidated basis only), all in reasonable detail, and in a format consistent with the projections delivered by Borrower to Agent prior to the date hereof, together with such supporting information as Agent may reasonably request, which projections shall be prepared on a quarterly basis and shall represent Borrower's reasonable best estimate of the future financial performance of Borrower for the periods set forth therein and shall have been prepared on the basis of the assumptions set forth therein which Borrower believes are fair and reasonable in light of current and reasonably foreseeable business conditions;
(m) Agent shall have received, in form and substance satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Lender Agent: (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender Agent for protection of its interests;
(kn) Lender AGENT SHALL HAVE RECEIVED ENVIRONMENTAL AUDITS (OR UPDATES OF EXISTING AUDITS) OF BORROWER'S PLANTS AND REAL PROPERTY LISTED IN PART I OF SCHEDULE 9.7(b) HERETO CONDUCTED BY AN INDEPENDENT ENVIRONMENTAL ENGINEERING FIRM ACCEPTABLE TO AGENT, AND IN FORM, SCOPE AND METHODOLOGY SATISFACTORY TO AGENT, CONFIRMING (i) BORROWER IS IN COMPLIANCE WITH ALL MATERIAL APPLICABLE ENVIRONMENTAL LAWS AND (ii) THE ABSENCE OF ANY MATERIAL ENVIRONMENTAL PROBLEMS;
(o) AGENT SHALL HAVE RECEIVED A WRITTEN APPRAISAL (OR UPDATES OF EXISTING APPRAISALS) AS TO THE OWNED REAL PROPERTY LISTED IN PART I OF SCHEDULE 9.7(b) HERETO at the expense of Borrower, by an appraiser acceptable to Agent, addressed to Agent and on which Agent is expressly permitted to rely, in form, scope and methodology satisfactory to Agent; and
(p) Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender Agent may in good faith request; and
(lq) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender Agent and Lenders making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by the Existing Lenders existing lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of Borrower and each Obligor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower and each Obligor as is set forth herein and such document as shall set forth the organizational identification number of Borrower and each Obligor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower individually, or Parent, Borrower and the Restricted Subsidiaries, taken as a whole, since February 18, 1999, the date of LenderAgent's latest field examination and no change or event shall have occurred which would impair the ability of Borrower individually, or any Obligor Parent, Borrower and the Restricted Subsidiaries, taken as a whole, to perform its their respective obligations hereunder or under any of the other Financing Collateral Agreements to which it any of them is a party or of Lender Agent to enforce the Obligations or realize upon the Collateral used in the calculation of the Borrowing Base or any material portion of any other Collateral;
(d) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records or other such inventory records as may be reasonably satisfactory to Agent and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(e) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of Borrower and each Obligor and by warehouses at which Collateral is located;
(f) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all necessary agreements with the depository banks Deposit Account Control Agreements by and among Agent, Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereofor any Obligor and each bank where Borrower or such Obligor has a deposit account, in each case, duly authorized, executed and delivered by such depository banks bank and BorrowerBorrower or such Obligor (or Agent shall be the bank's customer with respect to such deposit account, as Agent may specify);
(g) the Excess Availability Except, with respect to priority only, for liens defined as determined by Lender Permitted Liens in good faithSection 9.8, as Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderCollateral;
(h) Lender Agent shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation or organization of Borrower and each Obligor, the jurisdiction of the chief executive office of Borrower and each Obligor and all jurisdictions in which assets of Borrower and each Obligor are located, which search results shall be in form and substance satisfactory to Agent;
(i) Agent shall have received environmental audits of the Eligible Real Property conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology satisfactory to Agent, confirming (i) Parent, Borrower and each Restricted Subsidiary is in compliance with all material applicable Environmental Laws and such compliance shall be reasonably acceptable to Agent;
(j) Agent shall have received, in form and substance reasonably satisfactory to Agent, a valid and effective title insurance policy issued (evidenced by a marked-up title commitment or pro forma delivered at or prior to closing) by a company and agent acceptable to Agent (i) insuring the first priority, amount (not to exceed the appraised fair market value of the Eligible Real Property) and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys (other than those disclosed in surveys provided to Agent in connection with this Agreement and acceptable to Agent) and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests;
(k) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(il) Lender shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have received, in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings Borrower and Cottontops each Restricted Subsidiary with respect to the Financing Agreements and such other matters as Lender Agent may request; and
(lm) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Champion Enterprises Inc)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the amendment and restatement of the Obligations under the Existing Loan Agreement and the initial Loans and providing LC Accommodations to Borrowers pursuant to this Agreement and the initial Letter of Credit Accommodations hereunderother Financing Agreements:
(a) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all releases, terminations and such other documents as Lender Agent may request to evidence and effectuate the termination by of the Existing Lenders to Borrower of their respective financing arrangements with Borrower Synthetic Lease Facility Agreements and the termination by the respective lenders and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each ObligorGuarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any ObligorGuarantor, as debtor debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any Obligor Guarantor in favor of such Existing Lender it or Lendersany of them, in form acceptable for recording in with the appropriate government officeGovernmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or governmental authoritiesGovernmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(d) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since February 18, 1999, the date of LenderAgent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof;
(ef) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements by owners and lessors of leased premises of each Borrower and by processors, if any, and warehouses at which Collateral is located;
(fg) Lender A certificate of the chief financial officer or Vice President-Finance of Pep Boys setting forth, in form and substance, satisfactory to Agent, among other things, a calculation of the Exempted Debt Limit which certificate shall also include a calculation of Exempted Debt Availability after giving effect to the Loans and Letter of Credit Accommodations outstanding as of the date hereof;
(h) Agent shall have received true and correct copies of all of the Pep Boys Indentures;
(i) the Synthetic Lease Facility Agreements and all instruments an documents thereunder, shall have been duly executed and delivered by all of the parties thereto, each in form and substance satisfactory to Agent;
(j) Agent shall have received, in form and substance satisfactory to LenderAgent, all necessary agreements with Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the depository banks case may be and each bank where such Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof(or Guarantor) has a deposit account, in each case, duly authorized, executed and delivered by such depository banks bank and BorrowerBorrower or Guarantor, as the case may be (or Agent shall be the bank=s customer with respect to such deposit account as Agent may specify);
(gk) Agent shall have received and reviewed lien and judgement search results for the Excess Availability jurisdiction of incorporation of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located as determined by Lender in good faithAgent, as of the date hereof, which search results shall be not less than $10,000,000 after giving effect in form and substance satisfactory to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunderAgent;
(hl) Lender Agent shall have received Credit Card Acknowledgments in each case, duly authorized, executed and delivered by the Credit Card Issuers and Credit Card Processors;
(m) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee;
(in) Lender Agent shall have received environmental audits of Borrower's Real Property covered by the Mortgages conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender shall have receivedfrom Pep Boys, in form and substance reasonably satisfactory to LenderAgent, financial projections, on a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender quarterly basis for protection of its interests;fiscal year 2003.
(ko) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower, Holdings Borrowers and Cottontops Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may reasonably request; and
(lp) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
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Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Conditions Precedent to Initial Loans and Letter of Credit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the Existing Lenders existing lender or lenders to Borrower of their respective financing arrangements with Borrower and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Borrower or any Obligor in favor of such Existing Lender existing lender or Lenderslenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance reasonably satisfactory to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrower since February 18, 1999, the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(de) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral)Borrower, the results of which each case shall be satisfactory to Lender, not more than three seven (37) Business Days business days prior to the date hereof;
(ef) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, includingincluding acknowledgments by lessors, without limitationmortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral Access Agreements by owners and lessors of leased agreements permitting Lender access to, and the right to remain on, the premises of Borrower to exercise its rights and by warehouses at which Collateral is located;
(f) Lender shall have received, in form remedies and substance satisfactory to Lender, all necessary agreements otherwise deal with the depository banks and Borrower with respect to the Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrower;
Collateral; (g) the Excess Availability as determined by Lender in good faith, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made hereunder and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(h) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $500,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder;
(i) Lender shall have received environmental audits of Borrower's Real Property covered evidence satisfactory to Lender that the real estate refinancing evidenced by the Mortgages conducted by an independent environmental engineering firm acceptable to LenderReal Estate Documents has been consummated and that Borrower has received proceeds thereunder of at least $2,800,000, and Lender shall have a received a mortgagee waiver in form, scope form and methodology substance satisfactory to Lender, confirming (i) Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(j) Lender Borrower's licensing and royalty agreements shall have received, be in form and substance reasonably satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Lender for protection of its interests;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower, Holdings and Cottontops Borrower with respect to the Financing Agreements and such other matters as Lender may request; and
(l) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender(including, in form and substance satisfactory to Lender.without limitation, personal guaranties of Stephen M.
Appears in 1 contract
