Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender to make the initial Loans or to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent: (a) all requisite corporate and limited liability 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 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 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 organization); (b) Intentionally omitted; (c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 Loans available to 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 or such earlier date as Lender may agree; (e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender; (f) 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, the other Financing Agreements, including, without limitation, Collateral Access Agreements; (g) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender; (h) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements and Investment Property Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person 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); (i) 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; (j) Lender 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 satisfactory to Lender; (k) 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 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) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers; (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; (n) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrowers and 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; (i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and (p) 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 Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Credit-Linked Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Credit-Linked Letter of Credit of each of the following conditions precedent:
(a) Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent, all releases, terminations and such other documents as Administrative Agent may request to evidence and effectuate the termination of all Indebtedness of the Credit Parties (other than Indebtedness permitted under Section 9.9) and the termination and release, as the case may be, of any interest in and to any assets and properties of each Credit Party, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Credit Party, in form acceptable for recording with the appropriate Governmental Authority.
(b) All requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance 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 requested in connection therewith, such documents where requested by Lender Administrative Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation (or formation foreign equivalent) of each Borrower and Guarantor Credit Party certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor Credit Party as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or GuarantorCredit Party, if one is issued in its jurisdiction of organizationincorporation);
(b) Intentionally omitted;.
(c) no No material adverse change in the business, operations, profits, assets or prospects of the Borrower and its Subsidiaries, taken as a whole, shall have occurred in the assets, business or prospects of Borrowers since the date of Lender’s the most recent financial statements received by Administrative Agent or its latest field examination (not including for this purpose examination, if subsequent to the field review referred to in clause (d) below) date of such financial statements, and no change pending or event threatened litigation, proceeding, bankruptcy or insolvency, injunction, order or claims with respect to any Credit Party shall exist that could reasonably be expected to have occurred which would impair the ability of any Borrower or Guarantor 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;Material Adverse Effect.
(d) Lender shall have completed a field review Administrative Agent’s completion of the Records its business, legal and such other information environmental due diligence, with respect to the Collateral as Lender may require to determine the amount of Loans available to 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 results 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 or such earlier date as Lender may agree;Administrative Agent.
(e) Lender shall (i) be satisfied that, immediately after giving effect Subject to the transactions contemplated to occur under this Agreementterms of Section 9.32, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) Lender Administrative Agent shall have received, in form and substance satisfactory to LenderAdministrative Agent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Administrative Agent may deem necessary or desirable in order to permit, protect and perfect its Collateral Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement, Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;.
(gf) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;
(h) Lender Administrative Agent shall have received, in form and substance satisfactory to LenderAdministrative Agent, Deposit Account Control Agreements and Investment Property Control Agreements by and among LenderAdministrative Agent, each Borrower and GuarantorCredit Party, as the case may be be, and each bank, securities intermediary or other Person bank where such Borrower (or Guarantor) Credit Party has a deposit an account, investment account or other accountthan Excluded Deposit Accounts, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person bank and Borrower or Guarantorsuch Credit Party, as the case may be (or Lender Administrative Agent shall be the bank’s customer with respect to such deposit account as Lender Administrative Agent may specify);.
(ig) Lender Administrative Agent shall have received evidence, in form and substance satisfactory to LenderAdministrative Agent, that Lender Collateral Agent has a valid perfected first priority security interest in the Priority Collateral and a valid perfected second priority security interest in all of the ABL Priority Collateral;, subject only to Permitted Liens.
(jh) Lender Administrative Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and GuarantorCredit Party, the jurisdiction of the chief executive office of each Borrower and Guarantor Credit Party and all jurisdictions in which assets of Borrowers and Guarantors the Credit Parties are located, which search results shall be in form and substance satisfactory to Lender;Administrative Agent.
(ki) Lender Administrative Agent shall have received searches of ownership of intellectual property in the appropriate governmental offices of such patent/trademark/copyright filings as requested by Administrative Agent.
(j) Administrative Agent shall have received evidence that originals of the shares of the stock certificates certificates, if any, representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) Credit Party and owned by any Borrower or GuarantorCredit Party, in each case together with stock powers duly executed in blank with respect thereto;thereto have been delivered to the Control Agent.
(k) Administrative Agent shall have received evidence that all instruments and chattel paper in possession of any Credit Party, together with such allonges or assignments as may be necessary or appropriate to perfect Collateral Agent’s security interest in the Collateral that are required to be delivered under Section 5.2(b), have been delivered to the Control Agent.
(l) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(m) Lender Agent shall have received evidence of insurance coverage and lender’s loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to LenderAdministrative Agent, and certificates of insurance policies and/or endorsements naming Lender Administrative Agent as loss payee;payee for casualty insurance, including casualty, liability and business interruption insurance.
(nm) Lender Administrative Agent shall have received, in form and substance reasonably satisfactory to LenderAdministrative Agent, such opinion letters of counsel to Borrowers and Guarantors the Credit Parties (other than XX Xxxxx) 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 Administrative Agent may request and are customarily required for similar financings.
(n) Administrative Agent shall have received all financial information, projections, budgets, business plans, cash flows and such other information as Administrative Agent shall reasonably request;
, including (i) Lender projected quarterly consolidated balance sheets, income statements, statements of cash flows and availability of the Credit Parties for the period through the end of the 2007 and 2008 fiscal years, (ii) projected annual consolidated balance sheets, income statements, statements of cash flows and availability of Credit Parties through the end of the 2012 fiscal year, in each case as to the projections described in clauses (i) and (ii), with the results and assumptions set forth in all of such projections in form and substance satisfactory to Administrative Agent, and (iii) any updates or modifications to the projected financial statements of the Credit Parties previously received by Administrative Agent, in each case in form and substance satisfactory to Administrative Agent.
(o) Administrative Agent shall be reasonably satisfied with the corporate and capital structure and management of the Credit Parties and with all legal, tax, accounting and other matters relating to the Credit Parties.
(p) No material misstatements in or omissions from the materials previously furnished to Administrative Agent by the Borrower and its Subsidiaries shall have been made. Administrative Agent shall be satisfied that any financial statements delivered to it fairly present the business and financial conditions of the Borrower and its Subsidiaries.
(q) No defaults or events of default on the Closing Date under the Financing Agreements and the ABL Financing Agreements or on any other material debt or any Material Contract of any Credit Party shall exist.
(r) All conditions precedent to the closing and initial extensions of credit under the ABL Credit Agreement shall have been, or concurrently with the Closing Date and funding of the Loans shall be, satisfied, waived or subject to a post-closing undertaking (ii) the ABL Credit Agreement shall make available to the Borrower not less than $85,000,000 of revolving loan and letter of credit facilities, and (iii) Administrative Agent shall be satisfied that the initial extensions of credit under the ABL Credit Agreement shall have occurred, or will occur concurrently with the initial extensions of credit under this Agreement. Administrative Agent shall have received payment from Borrowers a copy, certified by the chief financial officer of the fees Borrower as true and complete, of the ABL Credit Agreement as originally executed and delivered, together with all exhibits and schedules thereto.
(s) At least five (5) Business Days prior to the Closing Date, Administrative Agent shall have received a certificate satisfactory thereto for benefit of itself and the Lenders, provided by the Borrower that sets forth information required by the Patriot Act including, without limitation, the identity of the Credit Parties, the name and address of the Credit Parties and other information that will allow Administrative Agent or any Lender, as applicable, to be to it identify the Credit Parties in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; andPatriot Act.
(pt) This Agreement and the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAdministrative Agent, in form and substance satisfactory to LenderAdministrative Agent.
(u) Payment by Borrower of all fees and expenses owed by them to the Lenders and Administrative Agent, including, without limitation, payment to Administrative Agent of the fees set forth in the Engagement Letter.
(v) Receipt by Administrative Agent of (a) a statement of sources and uses of funds covering all payments reasonably expected to be made by Borrower and its Subsidiaries in connection with the transactions contemplated by the Financing Agreements to be consummated on the Closing Date (including, without limitation, the payment in full and termination of the Existing Credit Agreement with proceeds received from the remarketing of the Borrower’s industrial revenue bonds), including an itemized estimate of all fees, expenses and other closing costs and (b) payment instructions with respect to each wire transfer to be made by Administrative Agent on behalf of the Lenders or Borrower and its Subsidiaries on the Closing Date setting forth the amount of such transfer, the purpose of such transfer, the name and number of the account to which such transfer is to be made, the name and ABA number of the bank or other financial institution where such account is located and the name and telephone number of an individual that can be contacted to confirm receipt of such transfer.
(w) Receipt by Administrative Agent of duly executed copies, certified by an officer of the Borrower as true and complete, of the Senior Subordinated Note Indenture and the Senior Subordinated Notes, including all exhibits and schedules thereto, in form and substance acceptable to the Lenders in their sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender the Banks to make the initial Loans or and to issue the initial Letters Letter of Credit hereunder is shall be subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each fulfillment of the following conditions precedentprecedent on or before the Closing Date in a manner satisfactory to the Banks:
(a) all requisite corporate Each Bank shall have received the following:
(i) A copy of resolutions approving this Agreement and limited liability action and proceedings authorizing the transactions contemplated in connection with this Agreement and the other Financing Agreements Loan Papers, duly adopted by the Board of Directors of each of the Companies, accompanied by a certificate of the Secretary or Assistant Secretary of the respective Company, dated the date hereof, that such copy is a true and correct copy of resolutions duly adopted at a meeting (which may be held if permitted by applicable Law and, if required by such Law, by the Bylaws of the respective Company, by conference telephone or similar communications equipment by means of which all persons participating in a meeting can hear each other) of, or by the unanimous written consent of (if permitted by applicable Law and, if required by such Law, by the Bylaws of the respective Company),the Board of Directors of the respective Company, and that such resolutions have not been amended, modified, repealed, or revoked in any respect, and are in full force and effect as of the date hereof.
(ii) A certificate of incumbency of all officers of Borrower and each Company who will be authorized to execute or attest this Agreement or any document delivered pursuant hereto on behalf of Borrower or such Company, dated the date hereof, executed by the Secretary or Assistant Secretary of Borrower or such Company.
(iii) The articles of incorporation of Borrower and each Company certified by the Secretary of State of the state of its incorporation and dated a current date.
(iv) The bylaws of Borrower and each Company certified by its Secretary or Assistant Secretary.
(v) Certificates of the appropriate government officials of the state of incorporation of Borrower and each Company as to its existence and, to the extent applicable, good standing and certificates of the appropriate government officials of each state in which Borrower and each Company is required to qualify to do business and where failure to so qualify could reasonably be expected to have a Material Adverse Effect, as to such Person's qualification to do business and good standing in such state, all dated a current date.
(vi) Its Revolving Credit Note duly executed by Borrower.
(vii) A Guaranty Agreement (or ratification thereof, if applicable), in form and substance satisfactory to the Required Banks, appropriately executed and delivered by each of the Companies other than Borrower.
(A) The Security Agreement in substantially the form of Exhibit G and executed by the Borrower and each Company, granting to the Administrative Agent, for the benefit of the Banks, a security interest in all accounts, instruments, chattel paper, deposit accounts, documents, contracts, and inventory of the Companies; (B) The Vehicles Security Agreement in substantially the form of Exhibit H and executed by the Borrower and each Company, granting to the Collateral Agent, for the benefit of the Banks, a security interest in all Vehicles of the Company; (C) Code, tax and judgment Lien search reports listing all documentation on file against Borrower and each Company in such jurisdictions as the Administrative Agent shall require; and (D) authorized and executed documentation as the Administrative Agent may deem necessary to perfect or protect its Liens under its Security Agreement, including, without limitation: (1) financing statements under the Code and other applicable documentation under the Laws of any jurisdiction with respect to the perfection of Liens; and (2) endorsement and delivery of (y) the W&B Note, and (z) all promissory notes and other chattel paper and instruments payable to the Companies, or any of them, in an aggregate principal amount greater than $1,000,000, to the Administrative Agent pursuant to an endorsement in form and substance satisfactory to the Administrative Agent and the Required Banks.
(ix) Duly authorized and executed (where required) UCC-3 termination statements, mortgage releases and such other documentation as shall be necessary to terminate or release all existing Liens on the assets of Borrower or the Companies other than the Permitted Liens.
(x) One or more Memorandum of Negative Pledge Agreement in form and substance satisfactory to the Administrative Agent and the Required Banks, executed by the respective owners of any and all real property owned by any Company, for recording in the appropriate real property records of the respective counties where such real property is located.
(xi) A Contribution and Indemnification Agreement in form and substance satisfactory to the Administrative Agent and the Required Banks, executed by the Companies.
(xii) A certificate or certificates in form and substance satisfactory to the Administrative Agent and the Banks, dated the Closing Date and signed by the Chief Financial Officer of Parent and an authorized officer of each other Company, certifying as to the solvency of each Company as of the Closing Date and after giving effect to the transactions contemplated by the Loan Papers.
(xiii) Evidence that the credit agreement being refinanced by this Agreement has been terminated, all obligations and indebtedness thereunder have been paid and satisfied in full, all Liens securing such indebtedness have been released, and all letters of credit thereunder have been returned and cancelled, or the foregoing shall occur concurrently with the closing of this Agreement, or provision for the foregoing shall have been made to the satisfaction of the Administrative Agent and the Required Banks.
(xiv) Certificates of insurance summarizing the insurance policies of the Borrower and the Companies required by this Agreement and reflecting Administrative Agent as additional insured under such policies and as loss payee with respect to all policies covering Collateral.
(xv) An opinion of counsel for Borrower and the Companies, substantially in form and substance acceptable to the Required Banks and their counsel, covering favorably such matters relating or incident to the transactions contemplated by this Agreement and the other Loan Papers as the Required Banks may request.
(xvi) The fees due on the Closing Date in accordance with this Agreement.
(xvii) Such other documents as Administrative Agent or any Bank may reasonably request.
(b) The representations and warranties contained in Article IV of this Agreement shall be true and correct in all material respects on and as of such date with the same effect as if made on and as of such date.
(c) No Default or Potential Default, shall be in existence on such date or after giving effect to such initial Loans or Letter of Credit.
(d) All corporate and legal proceedings and all documents required to be completed and executed by the provisions of, and all instruments to be executed in connection with the transactions contemplated by, this Agreement and any related agreements shall be satisfactory in form and substance to LenderAdministrative Agent and the Required Banks, and Lender Administrative Agent and the Banks shall have received all information and copies of all documents, including records of requisite corporate action proceedings, required by this Agreement and proceedings any related agreements to be executed or which Lender Administrative Agent or any Bank may reasonably have requested in connection therewith, such documents documents, where requested by Lender or its counsel appropriate, to be certified by appropriate proper corporate officers or Governmental 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 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 organization);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 Loans available to 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 or such earlier date as Lender may agree;governmental authorities.
(e) Lender No legal proceeding shall (i) be satisfied thatpending or threatened against Borrower or any other Company by or before any, immediately after giving effect Tribunal which could reasonably be expected to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as have a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;Material Adverse Effect.
(f) 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 The consummation of such Loans 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 issuance of this Agreement, the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(g) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and Letters such Letter of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes shall not violate any applicable provision of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;
(h) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements and Investment Property Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person 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);
(i) 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;
(j) Lender 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 satisfactory to Lender;
(k) 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 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) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(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;
(n) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrowers and 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;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(p) 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 LenderLaw.
Appears in 1 contract
Samples: Credit Agreement (Frozen Food Express Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Agent and Lenders to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) 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 the Existing Lenders of their respective financing arrangements with 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 Guarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, 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 Guarantor, as debtor;
(b) all requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance 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 requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental 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 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 organizationincorporation);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 Loans available to 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 or such earlier date as Lender Agent may agree;
(e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) 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, Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(gf) the Excess Availability as determined by LenderAgent, as of the date hereof, shall be not less than $20,000,000 2,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lenderhereunder;
(hg) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, Deposit Account Control Agreements and or Investment Property Control Agreements Agreement (as applicable) by and among LenderAgent, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person commodity intermediary where such Borrower (or Guarantor) Guarantor has a deposit account, investment account or other an account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person and Borrower or Guarantor, as the case may be (or Lender Agent shall be the bank’s customer with respect to such deposit account as Lender Agent may specify);
(ih) Lender Agent shall have received evidence, in form and substance satisfactory to LenderAgent, that Lender Agent has a valid perfected first priority security interest in all of the Collateral;
(ji) Lender 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 satisfactory to LenderAgent;
(j) Agent shall have received a written appraisal of the Inventory of Borrowers conducted by an independent appraisal firm acceptable to Agent, and in form, scope and methodology satisfactory to Agent, the results of which shall be satisfactory to Agent;
(k) 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;
(l) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(m) 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;
(nm) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrowers and 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 Agent may request;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(pn) 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 Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) 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 of any existing financing arrangements with 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 Guarantor, 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 Guarantor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(b) all requisite corporate and or limited liability company action and proceedings (as applicable) in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate or limited liability company action and proceedings (as applicable) which Lender Agent may have requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate or limited liability company officers (as applicable )or Governmental Authority (and including a copy of the certificate of incorporation incorporation, articles of association, certificate of formation, limited liability agreement, limited partnership agreement or formation other organizational documents of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate corporate, limited liability company or partnership 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 organizationincorporation or formation, as applicable);
(b) Intentionally omitted;
(c) except as shall have been disclosed to Agent in writing prior to the date of this Agreement, no material adverse change Material Adverse Effect shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 Loans available to Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing October 31, 2010 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 or such earlier date as Lender Agent may agree;
(e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, the balance sheet of Borrowers as of the period ended September 30, 2010;
(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, Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(g) the Closing Excess Availability as determined by LenderAgent, as of the date hereof, shall be not less than $20,000,000 10,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lenderhereunder;
(h) Lender Agent shall have received a Borrowing Base Certificate setting forth the Borrowing Base as at the date set forth therein, which shall be completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered by Borrowers, Guarantors and their respective Subsidiaries;
(i) Borrowers and Guarantors shall have (i) established deposit accounts and cash management arrangements with Xxxxx Fargo in form and substance satisfactory to Agent as required by Section 6 hereof and Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, Deposit Account Control Agreements and Investment Property Control Agreements by and among LenderAgent, each Borrower and Guarantor, as the case may be be, and Xxxxx Fargo, with respect to each bankBlocked Account, securities intermediary or other Person where and (ii) made arrangements for the termination of their existing cash management arrangements at Bank of Texas within sixty (60) days from the date hereof; except, that, such Borrower existing cash management arrangements may remain in effect from the date hereof up to the date that is sixty (or Guarantor60) has a days from the date hereof with respect to any deposit account, investment account or other accountaccounts maintained at Bank of Texas so long as Agent shall have received, in form and substance reasonably satisfactory to Agent, a Deposit Account Control Agreement by and among Agent, each caseBorrower and Guarantor, as the case may be, and Bank of Texas, duly authorized, executed and delivered by Agent, such bank, securities intermediary or other Person 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)be, and Bank of Texas;
(ij) Lender Agent shall have received evidence, in form and substance reasonably satisfactory to LenderAgent, that Lender Agent has a valid perfected first priority security interest in all of the Collateral;
(jk) Lender 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 LenderAgent;
(kl) 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 Equity Interests of each Borrower and Guarantor (other than Parent) Guarantor, and owned by any Borrower or Guarantor, in each case together with stock or limited liability company powers (as applicable) duly executed in blank with respect thereto;
(l) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(m) Lender 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; except, that, on or before December 1, 2010, Agent shall have received, in the form mutually agreed to as of the date hereof between Agent and Administrative Borrower, a copy of the issued and effective lenders’ loss payable endorsement naming Agent as lenders loss payee;
(n) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, such opinion letters of counsel to Borrowers and 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 Agent may request;
(io) Lender Agent shall have received payment evidence, in form and substance reasonably satisfactory to Agent, that Borrowers and Guarantors have received $15,000,000 in the aggregate from Borrowers one or more cash equity capital contributions made on or prior to the date hereof by Sponsor;
(p) Agent shall have received, in form and substance reasonably satisfactory to Agent, an executed copy of an original or executed original counterparts of the fees required Customer 2 Factoring Agent Intercreditor Agreement, duly authorized, executed and delivered by the parties thereto;
(q) Agent shall have received, in form and substance reasonably satisfactory to be to it in accordance with the terms Agent, copies of the Fee LetterCustomer 2 Factoring Agent Discount Documents, duly authorized, executed and delivered by the parties thereto, including, without limitation, any UCC-1 financing statement between Customer 2 Factoring Agent, as secured party, and Lighting Science, as debtor;
(iir) Lender’s counsel Agent shall have received payment received, in form and substance satisfactory to Agent, a closing certificate, dated as of the date hereof, from Borrowers the chief financial offer of its fee for services rendered and disbursements incurred in connection with Administrative Borrower confirming those matters set forth therein (the transactions contemplated hereby“Closing Officer’s Certificate”); and
(ps) 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 (Lighting Science Group Corp)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender the Lenders to make the initial Loans or of the Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) The Agent shall have received all releases, terminations and such other documents as the Agent may reasonably request to evidence and effectuate the termination of all Indebtedness of the Loan Parties (other than Indebtedness permitted under Section 9.9) and the termination and release, as the case may be, of any interest in and to any assets and properties of each Loan Party, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party, in form acceptable for recording with the appropriate Governmental Authority.
(b) All requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lenderthe Agent, and Lender the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender the Agent may have reasonably requested in connection therewith, such documents where requested by Lender the Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation (or formation equivalent) of each Borrower and Guarantor Loan Party certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor Loan Party as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or GuarantorLoan Party, if one is issued in its jurisdiction of organizationincorporation);
(b) Intentionally omitted;.
(c) no material Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any adverse change in or effect on the properties, financial condition or results of operations of the Acquired Company or any of its subsidiaries which is material to the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that the following shall have occurred not be considered a Closing Date Material Adverse Effect: (A) changes, events, inaccuracies, circumstances and effects that are caused by or arise out of (1) economic or business conditions in the assetsUnited States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, business (2) conditions effecting the industry in which the Acquired Company and its subsidiaries compete as a whole and which do not materially disproportionately impact the Acquired Company or prospects any of Borrowers since its subsidiaries, (B) any effect attributable to or arising out of (1) the date public announcement or the pendency of Lender’s latest field examination the Acquisition Agreement or the performance of the Acquisition Agreement, (not including for this purpose 2) any action taken by the field review referred Acquired Company in compliance with the Acquisition Agreement, or (3) changes in laws or GAAP or the enforcement or interpretation thereof, or (C) any effect arising out of a matter disclosed on a Schedule to in clause the Acquisition Agreement; or (dii) below) and no change or event shall have occurred which any effect that would materially impair the Acquired Company’s, the Buyer’s (as defined in the Acquisition Agreement) or the Stockholders’ (as defined in the Acquisition Agreement) ability of any Borrower or Guarantor to perform its obligations hereunder or under any of consummate the other Financing Agreements to which it is a party or of Lender to enforce transactions contemplated by the Obligations or realize upon the Collateral;Acquisition Agreement.
(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 Loans available to 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 or such earlier date as Lender may agree;
(e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) Lender The Agent shall have received, in form and substance satisfactory to Lenderthe Agent, all consents, waivers, acknowledgments and other agreements from third persons which Lender the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect its the Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement, Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(g) ; provided, that the Excess Availability as determined by Lender, as of the date hereof, shall foregoing condition will be not less than $20,000,000 after giving effect deemed fulfilled to the initial Loans made or extent the Loan Parties use commercially reasonable efforts to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;
(h) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements and Investment Property Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person where obtain such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person 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);
(i) 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;
(j) Lender 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 satisfactory to Lender;
(k) 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 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) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(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;
(n) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrowers and 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;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(p) 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 Lenderagreements.
Appears in 1 contract
Samples: Abl Loan and Security Agreement (U.S. Silica Holdings, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Agent and Lenders to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Agent shall have received, in form and substance satisfactory to Agent, a guaranty duly executed by each Guarantor covering all Obligations of Commerce Energy;
(b) any consent or approval of, or notice to, any Governmental Authority with respect to the transactions contemplated hereby shall have been duly obtained or given;
(c) all requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance 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 requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of Commerce Energy and 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 Commerce Energy and each Guarantor as is set forth herein and such document as shall set forth the organizational identification number of Commerce Energy and each Borrower or Guarantor, if one is issued in its jurisdiction of organizationincorporation);
(b) Intentionally omitted;
(cd) no material adverse change shall have occurred in the assets, business or prospects of Borrowers Commerce Energy since the date of Lender’s Agent's latest field examination (not including for this purpose the field review referred to in clause (de) below) and no change or event shall have occurred which would materially impair the ability of any Borrower or Commerce Energy and each Guarantor 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 reasonably require to determine the amount of Loans available to Borrowers Commerce Energy (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 or such earlier date as Lender Agent may agree;
(ef) Lender Agent shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any)received, in form and substance reasonably satisfactory to Lender;
(f) Lender shall have received, in form and substance 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, Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(g) the Excess Availability as determined by LenderAgent, as of the date hereof, shall be not less than $20,000,000 15,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lenderhereunder;
(h) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, Deposit Account Control Agreements and Investment Property Control Agreements Accounts (as applicable) by and among LenderAgent, each Borrower Commerce Energy and GuarantorGuarantors, as the case may be and each bank, bank or securities intermediary or other Person where such Borrower (or Guarantor) any of Commerce Energy and Guarantors has a deposit account, investment account or other securities account, in each case, duly authorized, executed and delivered by such bank, bank or securities intermediary or other Person and Borrower or GuarantorGuarantors, as the case may be (or Lender Agent shall be the bank’s 's customer with respect to such deposit account as Lender Agent may specify);
(i) Lender Agent shall have received evidence, in form and substance reasonably satisfactory to LenderAgent, that Lender Agent has a valid perfected first priority security interest in all of the Collateral;
(j) Lender Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower of Commerce Energy and GuarantorGuarantors, the jurisdiction of the chief executive office of each Borrower of Commerce Energy and Guarantor Guarantors and all jurisdictions in which assets of Borrowers each of Commerce Energy and Guarantors are located, which search results shall be in form and substance satisfactory to LenderAgent;
(k) 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 held by Commerce Energy or any Guarantor in Commerce Energy and Guarantor (other than Parent) and owned by any Borrower or GuarantorSkipping Stone, in each case together with stock powers duly executed in blank with respect thereto;
(l) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(m) Lender 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;
(nm) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, such opinion letters of counsel to Borrowers Commerce Energy and 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 Agent may request;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(pn) 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 (Commerce Energy Group Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) 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 the Existing Lenders of their respective financing arrangements with 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, 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;
(b) all requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance 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 requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental 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 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 GuarantorBorrower, if one is issued in its jurisdiction of organizationincorporation);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 Loans available to 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 or such earlier date as Lender Agent may agree;
(e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) 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, Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(gf) the Excess Availability (without giving effect to the Minimum Reserve) as determined by LenderAgent, as of the date hereof, shall be not less than $20,000,000 5,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lenderhereunder;
(hg) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, Deposit Account Control Agreements and Investment Property Control Agreements by and among LenderAgent, each Borrower and GuarantorBorrower, as the case may be and each bank, securities intermediary or other Person bank where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person bank and Borrower or GuarantorBorrower, as the case may be (or Lender Agent shall be the bank’s 's customer with respect to such deposit account as Lender Agent may specify);
(ih) Lender Agent shall have received evidence, in form and substance satisfactory to LenderAgent, that Lender Agent has a valid perfected first priority security interest in all of the Collateral;
(ji) Lender Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and GuarantorBorrower, 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 LenderAgent;
(kj) 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 GuarantorBorrower, in each case together with stock powers duly executed in blank with respect thereto;
(lk) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(m) 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;
(nl) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrowers and 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 Agent may request;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(pm) 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 (Sed International Holdings Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender the Banks to make the initial Loans or and to issue the initial Letters Letter of Credit hereunder is shall be subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each fulfillment of the following conditions precedentprecedent on or before the Closing Date in a manner satisfactory to the Banks:
(a) all requisite corporate Each Bank shall have received the following:
(i) A copy of resolutions approving this Agreement and limited liability action and proceedings authorizing the transactions contemplated in connection with this Agreement and the other Financing Agreements Loan Papers, duly adopted by the Board of Directors of each of the Companies, accompanied by a certificate of the Secretary or Assistant Secretary of the respective Company, dated the date hereof, that such copy is a true and correct copy of resolutions duly adopted at a meeting (which may be held if permitted by applicable Law and, if required by such Law, by the bylaws of the respective Company, by conference telephone or similar communications equipment by means of which all persons participating in a meeting can hear each other) of, or by the unanimous written consent of (if permitted by applicable Law and, if required by such Law, by the bylaws of the respective Company), the Board of Directors of the respective Company, and that such resolutions have not been amended, modified, repealed, or revoked in any respect, and are in full force and effect as of the date hereof:
(ii) A certificate of incumbency of all officers of Borrower and each Company who will be authorized to execute or attest this Agreement or any document delivered pursuant hereto on behalf of Borrower or such Company, dated the date hereof; executed by the Secretary or Assistant Secretary of Borrower or such Company.
(iii) The articles of incorporation of Borrower and each Company certified by the Secretary of State of the state of its incorporation and dated a current date.
(iv) The bylaws of Borrower and each Company certified by its Secretary or Assistant Secretary.
(v) Certificates of the appropriate government officials of the state of incorporation of Borrower and each Company as to its existence and, to the extent applicable, good standing and certificates of the appropriate government officials of each state in which Borrower and each Company is required to qualify to do business and where failure to so qualify could reasonably be expected to have a Material Adverse Effect, as to such Person’s qualification to do business and good standing in such state, all dated a current date.
(vi) Its Revolving Credit Note duly executed by Borrower.
(vii) A Guaranty Agreement (or ratification thereof, if applicable), in form and substance satisfactory to the Required Banks, appropriately executed and delivered by each of the Companies other than Borrower.
(viii) The fees due on the Closing Date in accordance with this Agreement.
(ix) A payoff letter from Bank of America, N.A. with respect to the payment in full of its loans under the Existing Credit Documents and the termination of its commitment thereunder.
(x) Such other documents as Administrative Agent or any Bank may reasonably request.
(b) The representations and warranties contained in Article IV of this Agreement shall be true and correct in all material respects on and as of such date with the same effect as if made on and as of such date.
(c) No Default or Potential Default, shall be in existence on such date or after giving effect to such initial Loans or Letter of Credit.
(d) All corporate and legal proceedings and all documents required to be completed and executed by the provisions of, and all instruments to be executed in connection with the transactions contemplated by this Agreement and any related agreements shall be satisfactory in form and substance to LenderAdministrative Agent and the Required Banks, and Lender Administrative Agent and the Banks shall have received all information and copies of all documents, including records of requisite corporate action proceedings, required by this Agreement and proceedings any related agreements to be executed or which Lender Administrative Agent or any Bank may reasonably have requested in connection therewith, such documents documents, where requested by Lender or its counsel appropriate, to be certified by appropriate proper corporate officers or Governmental 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 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 organization);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 Loans available to 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 or such earlier date as Lender may agree;governmental authorities.
(e) Lender No legal proceeding shall (i) be satisfied thatpending or threatened against Borrower or any other Company by or before any, immediately after giving effect Tribunal which could reasonably be expected to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as have a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;Material Adverse Effect.
(f) 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 The consummation of such Loans 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 issuance of this Agreement, the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(g) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and Letters such Letter of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes shall not violate any applicable provision of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;
(h) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements and Investment Property Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person 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);
(i) 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;
(j) Lender 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 satisfactory to Lender;
(k) 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 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) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(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;
(n) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrowers and 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;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(p) 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 LenderLaw.
Appears in 1 contract
Samples: Credit Agreement (Frozen Food Express Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Agent shall have received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders of their respective financing arrangements with 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 Guarantor, 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 Guarantor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(b) all requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance 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 Authority (and including a copy of the certificate of incorporation or formation of each Borrower and Guarantor certified by the applicable 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 organizationincorporation);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 vipon 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 in accordance with Agent’s customary practices and procedures to determine the amount of Loans available to Borrowers (including, without limitation, current perpetual inventory records and/or roll-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 reasonably 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 or such earlier date as Lender Agent may agree;
(e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) 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, the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(g) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;
(h) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements and Investment Property Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person 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);
(i) 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;
(j) Lender 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 satisfactory to Lender;
(k) 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 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) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(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;
(n) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrowers and 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;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(p) 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 (Latrobe Specialty Metals, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) 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 the Existing Lenders of their respective financing arrangements with Borrowers and Guarantors;
(b) all requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance 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 requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental 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 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 organizationincorporation);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 Loans available to 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 seven (37) Business Days prior to the date hereof or such earlier date as Lender Agent may agree;
(e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) 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, the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(g) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;
(h) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements and Investment Property Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person 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);
(i) 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;
(j) Lender 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 satisfactory to Lender;
(k) 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 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) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(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;
(n) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrowers and 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;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(p) 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 Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) all requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance 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 requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental 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 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 organizationincorporation);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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;
(c) [Intentionally Omitted]
(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 Loans available to 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 or such earlier date as Lender may agree;
(e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) Lender Agent 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, the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(g) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;
(h) Lender shall have received, in form and substance satisfactory to LenderAgent, Deposit Account Control Agreements and Investment Property Control Agreements by and among LenderAgent, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person bank where such Borrower (or Guarantor) has a deposit account, investment account or other accountincluding, without limitation, among Agent, Fedders Canada and each bank where proceeds of Fedders Canada Accounts are at any time deposited, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person bank and Borrower or Guarantor, as the case may be (or Lender Agent shall be the bank’s 's customer with respect to such deposit account as Lender Agent may specify);
(ie) Lender Agent shall have received evidencesuch amendments to the Mortgages as Agent shall require as a result of the amended and restated terms of the financing arrangements between Lenders and Borrowers set forth in this Agreement;
(f) In connection with the assignments of the Mortgages by Wachovia to Agent as of the date hereof and any amendments to the mortgages required by subsection (e) above, Agent shall have received, in form and substance satisfactory to LenderAgent, that Lender has a valid perfected first priority security interest in all and effective endorsement to the existing title insurance policy insuring the priority, amount and sufficiency of the CollateralMortgages;
(jg) Lender 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 satisfactory to Lender;
(k) 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 ParentFedders) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto, limited, however, to sixty-five (65%) percent of such Capital Stock in the case of the Capital Stock of Fedders Canada;
(lh) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed Agent shall have either (i) confirmed that it has in a manner reasonably its possession Collateral Access Agreements, satisfactory to Lender and duly authorizedAgent, executed and delivered by Administrative Borrower on behalf with respect to each of Borrowers' current leased Inventory locations and executed by each of Borrowers' current Freight Forwarders, Port Processors and other Inventory bailees, or (ii) received Collateral Access Agreements for each of such Inventory locations and from each of such bailees for whom Agent did not already have such Collateral Access Agreement in its possession;
(mi) 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;
(nj) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrowers and 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 Agent may request;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(pk) 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 Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Agent and Lenders to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver by Agent of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) 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 the existing lenders of their respective financing arrangements with 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 Guarantor, 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 Guarantor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority provided that (A) all financing statements previously filed by Wachovia against Borrowers and Aftermarket Entities shall be assigned to Agent on or before the date hereof and (B) the requirements set forth in this clause (a) shall not apply to any liens, security interests or other encumbrances in effect on the date of this Agreement and permitted under Sections 8.4 and 9.8 hereof;
(b) all requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance 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 requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental 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 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 organizationincorporation);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects condition of Borrowers or Aftermarket Entities since 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 Guarantor 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 received such other information with respect to the Collateral as Lender Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Borrowers' Accounts and Inventory through the date of closing and test counts of the Borrowers' 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 or such earlier date as Lender Agent may agree;
(e) Lender Agent shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any)received, in form and substance reasonably satisfactory to Lender;
(f) Lender shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements (or assignments thereof) 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, Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(g) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;
(h) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements and Investment Property Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person 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);
(i) 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;
(j) Lender 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 satisfactory to Lender;
(k) 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 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) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(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;
(n) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrowers and 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;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(p) 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 (Proliance International, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender the Banks to make the initial Loans or (including Swingline Advances) and to issue the initial Letters Letter of Credit hereunder is shall be subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each fulfillment of the following conditions precedentprecedent on or before the Closing Date in a manner satisfactory to the Banks:
(a) all requisite corporate Each Bank shall have received the following:
(i) A copy of resolutions approving this Agreement and limited liability action and proceedings authorizing the transactions contemplated in connection with this Agreement and the other Financing Agreements Loan Papers, duly adopted by the Board of Directors of each of the Companies, accompanied by a certificate of the President and Secretary of the respective Company, dated the date hereof, that such copy is a true and correct copy of resolutions duly adopted at a meeting (which may be held if permitted by applicable Law and, if required by such Law, by the Bylaws of the respective Company, by conference telephone or similar communications equipment by means of which all persons participating in a meeting can hear each other) of, or by the unanimous written consent of (if permitted by applicable Law and, if required by such Law, by the Bylaws of the respective Company),the Board of Directors of the respective Company, and that such resolutions have not been amended, modified, repealed, or revoked in any respect, and are in full force and effect as of the date hereof.
(ii) A certificate of incumbency of all officers of Borrower and each Company who will be authorized to execute or attest this Agreement or any document delivered pursuant hereto on behalf of Borrower or such Company, dated the date hereof, executed by the President and the Secretary of Borrower or such Company.
(iii) The articles of incorporation of Borrower and each Company certified by the Secretary of State of the state of its incorporation and dated a current date.
(iv) The bylaws of Borrower and each Company certified by its President and Secretary.
(v) Certificates of the appropriate government officials of the state of incorporation of Borrower and each Company as to its existence and, to the extent applicable, good standing and certificates of the appropriate government officials of each state in which Borrower and each Company is required to qualify to do business and where failure to so qualify could reasonably be expected to have a Material Adverse Effect, as to such Person's qualification to do business and good standing in such state, all dated a current date.
(vi) Its Revolving Credit Note and, with respect to Agent, its Swingline Note, each duly executed by Borrower.
(vii) A Guaranty Agreement (or ratification thereof, if applicable), in form and substance satisfactory to the Banks, appropriately executed and delivered by each of the Companies other than Borrower.
(viii) The Security Agreement in substantially the form of EXHIBIT I and executed by the Borrower and each Company; Code, tax and judgment Lien search reports listing all documentation on file against Borrower and each Company in each jurisdiction in which such entity has its principal place of business or when Collateral is or will be located; and executed documentation as the Agent may deem necessary to perfect or protect its Liens, including, without limitation: (i) financing statements under the Code and other applicable documentation under the Laws of any jurisdiction with respect to the perfection of Liens; (ii) lien subordinations from the landlords of the locations of each entity containing such access agreements and subordinations as Agent may require; and (iii) waivers, subordinations or acknowledgments from all other third parties who have possession or control of any Collateral.
(ix) Duly executed UCC-3 termination statements, mortgage releases and such other documentation as shall be necessary to terminate or release all existing Liens on the assets of Borrower or the Companies other than those Permitted Liens.
(x) Certificates of insurance summarizing the insurance policies of the Borrower and the Companies required by this Agreement and reflecting Agent as additional insured under such policies and as loss payee with respect to all policies covering Collateral.
(xi) An opinion of counsel for Borrower and the Companies, substantially in form and substance acceptable to the Banks and their counsel, covering favorably such matters relating or incident to the transactions contemplated by this Agreement and the other Loan Papers as the Banks may request.
(xii) The fees due on the Closing Date as described in the Fee Letter.
(xiii) Such other documents as Agent or any Bank may reasonably request.
(b) The representations and warranties contained in ARTICLE IV of this Agreement shall be true and correct in all material respects on and as of such date with the same effect as if made on and as of such date.
(c) No Default or Potential Default, shall be in existence on such date or after giving effect to such initial Loans or Letter of Credit.
(d) All corporate and legal proceedings and all documents required to be completed and executed by the provisions of, and all instruments to be executed in connection with the transactions contemplated by, this Agreement and any related agreements shall be satisfactory in form and substance to LenderAgent and the Banks, and Lender Agent and the Banks shall have received all information and copies of all documents, including records of requisite corporate action proceedings, required by this Agreement and proceedings any related agreements to be executed or which Lender Agent or any Bank may reasonably have requested in connection therewith, such documents documents, where requested by Lender or its counsel appropriate, to be certified by appropriate proper corporate officers or Governmental 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 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 organization);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 Loans available to 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 or such earlier date as Lender may agree;governmental authorities.
(e) Lender No legal proceeding shall (i) be satisfied thatpending or threatened against Borrower or any other Company by or before any, immediately after giving effect Tribunal which could reasonably be expected to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as have a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;Material Adverse Effect.
(f) Lender The consummation of such Loans or issuance of such Letter of Credit 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 not violate any applicable provision of this Agreement, the other Financing Agreements, including, without limitation, Collateral Access Agreements;any Law.
(g) the Excess Availability as determined by LenderThe existing revolving loan facility between Borrower and Xxxxx Fargo, as of the date hereof, shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if anyindividually, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the maximum principal amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;
(h) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements and Investment Property Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person 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);
(i) 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;
(j) Lender 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 satisfactory to Lender;
(k) 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 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) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(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;
(n) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrowers and 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;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(p) the other Financing Agreements and all instruments and documents hereunder and thereunder $1,000,000 shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lenderterminated.
Appears in 1 contract
Samples: Credit Agreement (Frozen Food Express Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Agent and Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:.
(a) 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 the Existing Lenders of their respective financing arrangements with Borrowers and Guarantors;
(b) all requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance 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 requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental 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 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 organizationincorporation or formation);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 Loans available to Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers 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 seven (37) Business Days prior to the date hereof or such earlier date as Lender Agent may agree;
(e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, (i) an opening pro-forma balance sheet of Parent and its Subsidiaries (on a consolidated basis), reflecting the transactions contemplated hereby and (ii) projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a monthly basis for the period through the end of the 2006 fiscal year and thereafter, on an annual basis for each fiscal year through the end of the 2009 fiscal year, in each case with the results and assumptions set forth in all of such projections in form and substance satisfactory to Agent;
(f) Agent shall have received, in form and substance 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, Agreement and the other Financing Agreements, including, without limitation, Collateral Access AgreementsAgreements (other than from the lessors of retail store locations) and Credit Card Acknowledgments;
(g) the Excess Availability as determined by LenderAgent, as of the date hereof, shall be not less than $20,000,000 25,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lenderhereunder;
(h) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, a Deposit Account Control Agreements and Investment Property Control Agreements Agreement by and among Lender, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each caseAgent, duly authorized, executed and delivered by such bank, securities intermediary or other Person Parent 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)BancorpSouth Bank;
(i) Lender Agent shall have received evidence, in form and substance satisfactory to LenderAgent, that Lender Agent has a valid perfected first priority security interest in all of the Collateral;
(j) Lender 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 in such jurisdictions in which assets of Borrowers and Guarantors are locatedas Agent shall request, which search results shall be in form and substance satisfactory to LenderAgent;
(k) Lender Agent shall have received environmental audits of the Real Property to be subject to the Mortgage conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology satisfactory to Agent, the results of which shall be 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 Agent: (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 Agent for protection of its interests;
(m) 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;
(ln) Agent shall have received a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement hereof as completed in a manner reasonably satisfactory to Lender Agent and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(mo) 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;
(np) Lender Agent shall have received a written appraisal as to the Inventory of Borrowers and Guarantors and the Baldwyn Real Property, in each case 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;
(q) no material pending or threatened, litigation, proceeding, bankruptcy or insolvency, injunction, order or claims with respect to Borrowers and Guarantors shall exist;
(r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing;
(s) Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrowers and 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 Agent may request;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(pt) 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 Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent, all releases, terminations and such other documents as Administrative Agent may request to evidence and effectuate the termination of all Indebtedness of Borrowers and Guarantors (other than Indebtedness permitted under Section 9.9) and the termination and release, as the case may be, of any interest in and to any assets and properties of each Borrower and Guarantor, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor, in form acceptable for recording with the appropriate Governmental Authority.
(b) All requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to LenderAdministrative Agent (including, without limitation any works’ council advice (ondernemingsraadadvies)), 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 requested in connection therewith, such documents where requested by Lender Administrative Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation (or formation foreign equivalent) 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 organizationincorporation);
(b) Intentionally omitted;.
(c) no No material adverse change in the business, operations, profits, assets or prospects of the Company and its Subsidiaries, taken as a whole, shall have occurred in the assets, business or prospects of Borrowers since the date of Lender’s the most recent financial statements received by Administrative Agent or its latest field examination (not including for this purpose examination, if subsequent to the field review referred to in clause (d) below) date of such financial statements, and no change pending or event shall have occurred which would impair the ability of threatened litigation, proceeding, bankruptcy or insolvency, injunction, order or claims with respect to any Borrower or any Guarantor shall exist that could reasonably be expected 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 Collateral;Material Adverse Effect.
(d) Lender shall have completed a field Administrative Agent’s completion of its business, legal and environmental due diligence, with results satisfactory to Administrative Agent, including (i) receipt and review of a third party inventory appraisal on which Administrative Agent and the Records Lenders are permitted to rely, in form and such other information with respect containing assumptions and appraisal methods satisfactory to the Collateral as Lender may require Administrative Agent by an appraiser acceptable to determine the amount of Loans available to Borrowers Administrative Agent, and (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts ii) field examinations of the Inventory business and collateral of Borrowers and Guarantors in a manner satisfactory to Lender, together accordance with such supporting documentation Administrative Agent’s customary procedures and practices and as may be necessary or appropriate, otherwise required by the nature and other documents circumstances of the businesses of Borrowers 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 or such earlier date as Lender may agree;Guarantors.
(e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) Lender Administrative Agent shall have received, in form and substance satisfactory to LenderAdministrative Agent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Administrative Agent may reasonably deem necessary or desirable in order to permit, protect and perfect its Collateral Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement, Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;; provided, however, that Administrative Agent may elect to allow the Company a limited amount of time after the Closing Date to obtain certain Collateral Access Agreements and/or waive the requirement of Collateral Access Agreements with respect to premises for which Administrative Agent has established a Reserve and, at the request of the Company, not require Collateral Access Agreements for any premises where the Company has elected not to include Inventory in the U.S. Borrowing Base.
(gf) the Excess Availability as determined by LenderAdministrative Agent, as of the date hereof, shall be not less than $20,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes and payment of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability all fees and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;expenses in connection therewith.
(hg) Lender Administrative Agent shall have received, in form and substance satisfactory to LenderAdministrative Agent, Deposit Account Control Agreements and Investment Property Control Agreements by and among LenderAdministrative Agent, each U.S. Borrower and Guarantor, as the case may be be, and each bank, securities intermediary or other Person bank where such Borrower (or Guarantor) has a deposit an account, investment account or other accountthan Excluded Deposit Accounts, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person bank and such Borrower or Guarantor, as the case may be (or Lender Administrative Agent shall be the bank’s customer with respect to such deposit account as Lender Administrative Agent may specify);.
(ih) Lender Administrative Agent shall have received evidence, in form and substance satisfactory to LenderAdministrative Agent, that Lender Collateral Agent has a valid perfected first priority security interest in the Priority Collateral and a valid perfected second priority security interest in all of the Collateral;CL Priority Collateral other than Real Property, subject only to Permitted Liens.
(ji) Lender Administrative Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each U.S. Borrower and Guarantor, the jurisdiction of the chief executive office of each U.S. Borrower and Guarantor and all jurisdictions in which assets of U.S. Borrowers and Guarantors are locatedlocated and, to the extent available, comparable searches for the Dutch Borrower in the Netherlands (if any) and any applicable jurisdiction (including Washington, D.C.) in the United States, which search results shall be in form and substance satisfactory to Lender;Administrative Agent.
(j) Administrative Agent shall have received searches of ownership of intellectual property in the appropriate governmental offices of such patent/trademark/copyright filings as requested by Administrative Agent.
(k) Lender Administrative Agent shall have received evidence that originals of the shares of the stock certificates 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;thereto have been delivered to the Control Agent.
(l) a Borrowing Base Certificate setting forth Administrative Agent shall have received evidence that all instruments and chattel paper in possession of any Borrower or Guarantor, together with such allonges or assignments as may be necessary or appropriate to perfect Collateral Agent’s security interest in the Revolving Loans and Letters of Credit available Collateral that are required to Borrowers as of be delivered under Section 5.2(b), have been delivered to the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;Control Agent.
(m) Lender Administrative Agent shall have received evidence of insurance coverage and lender’s loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to LenderAdministrative Agent, and certificates of insurance policies and/or endorsements naming Lender Administrative Agent as loss payee;payee for casualty insurance, including casualty, liability and business interruption insurance.
(n) Lender Administrative Agent shall have received, in form and substance reasonably satisfactory to LenderAdministrative Agent, such opinion letters of counsel to Borrowers and Guarantors (other than XX Xxxxx) 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 Administrative Agent may request and are customarily required for similar financings.
(o) Administrative Agent shall have received all financial information, projections, budgets, business plans, cash flows and such other information as Administrative Agent shall reasonably request;
, including (i) Lender projected quarterly consolidated balance sheets, income statements, statements of cash flows and availability of Borrowers and Guarantors for the period through the end of the 2007 and 2008 fiscal years, (ii) projected annual consolidated balance sheets, income statements, statements of cash flows and availability of Borrowers and Guarantors through the end of the 2012 fiscal year, in each case as to the projections described in clauses (i) and (ii), with the results and assumptions set forth in all of such projections in form and substance satisfactory to Administrative Agent, (iii) any updates or modifications to the projected financial statements of Borrowers and Guarantors previously received by Administrative Agent, in each case in form and substance satisfactory to Administrative Agent and (iv) current agings of receivables, current perpetual inventory records and/or roll-forwards of accounts and inventory through the date of closing, together with supporting documentation, each in form and substance satisfactory to Administrative Agent.
(p) Administrative Agent shall be reasonably satisfied with the corporate and capital structure and management of Borrowers and Guarantors and with all legal, tax, accounting and other matters relating to Borrowers and Guarantors.
(q) No material misstatements in or omissions from the materials previously furnished to Administrative Agent by Borrowers and Guarantors shall have been made. Administrative Agent shall be satisfied that any financial statements delivered to it fairly present the business and financial conditions of Borrowers and Guarantors.
(r) No defaults or events of default on the Closing Date under the Financing Agreements and the CL Financing Agreements or on any other material debt or any Material Contract of any Borrower or any Guarantor shall exist.
(s) All conditions precedent to the closing and initial extensions of credit under the CL Credit Agreement shall have been, or concurrently with the Closing Date and funding of the Loans shall be, satisfied, waived or subject to a post-closing undertaking (ii) the CL Credit Agreement shall make available to the Company not less than $90,000,000 of term loan and letter of credit facilities, and (iii) Administrative Agent shall be satisfied that the initial extensions of credit under the CL Credit Agreement shall have occurred, or will occur concurrently with the initial extensions of credit under this Agreement. Administrative Agent shall have received payment from Borrowers a copy, certified by the chief financial officer of the fees Company as true and complete, of the CL Credit Agreement as originally executed and delivered, together with all exhibits and schedules thereto.
(t) At least five (5) Business Days prior to the Closing Date, Administrative Agent shall have received a certificate satisfactory thereto for benefit of itself and the Lenders, provided by the Company that sets forth information required by the Patriot Act including, without limitation, the identity of Borrowers and Guarantors, the name and address of Borrowers and Guarantors and other information that will allow Administrative Agent or any Lender, as applicable, to be to it identify Borrowers and Guarantors in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; andPatriot Act.
(pu) This Agreement and the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAdministrative Agent, in form and substance satisfactory to LenderAdministrative Agent.
(v) Payment by Borrowers of all fees and expenses owed by them to the Lenders and Administrative Agent, including, without limitation, payment to Administrative Agent of the fees set forth in the Engagement Letter.
(w) Receipt by Administrative Agent of (a) a statement of sources and uses of funds covering all payments reasonably expected to be made by Borrowers or Guarantors in connection with the transactions contemplated by the Financing Agreements to be consummated on the Closing Date, including an itemized estimate of all fees, expenses and other closing costs and (b) payment instructions with respect to each wire transfer to be made by Administrative Agent on behalf of the Lenders or the Company or Borrowers or Guarantors on the Closing Date setting forth the amount of such transfer, the purpose of such transfer, the name and number of the account to which such transfer is to be made, the name and ABA number of the bank or other financial institution where such account is located and the name and telephone number of an individual that can be contacted to confirm receipt of such transfer.
(x) Receipt by Administrative Agent of duly executed copies, certified by an officer of the Company as true and complete, of the Senior Subordinated Note Indenture and the Senior Subordinated Notes, including all exhibits and schedules thereto, in form and substance acceptable to the Lenders in their sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Agent and Lenders to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) 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 the Existing Lenders of their respective financing arrangements with 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 Guarantor, 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 Guarantor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(b) all requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance 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 requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental 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 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 organizationincorporation);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since 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 Guarantor 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 Loans available to 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 in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender Agent may agree;
(e) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) 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, Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(gf) the Excess Availability as determined by LenderAgent, as of the date hereof, shall be not less than $20,000,000 5,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lenderhereunder;
(hg) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, a guaranty duly executed and delivered by Guarantors;
(h) Agent shall have received, in form and substance satisfactory to Agent, subordination agreements duly executed and delivered by Sonopress LLC, a Delaware limited liability company, and Portside Growth and Opportunity Fund, a company organized under the laws of the Cayman Islands, respectively, and acknowledged by Administrative Borrower;
(i) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements and Investment Property Control Agreements by and among LenderAgent, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person bank where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person bank and Borrower or Guarantor, as the case may be (or Lender Agent shall be the bank’s customer with respect to such deposit account as Lender Agent may specify);
(ij) Lender Agent shall have received evidence, in form and substance satisfactory to LenderAgent, that Lender Agent has a valid perfected first priority security interest in all of the Collateral;
(jk) Lender 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 satisfactory to LenderAgent;
(kl) 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;
(l) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(m) 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;
(n) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrowers and 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 Agent may request;
(i) Lender shall have received payment from Borrowers of the fees required to be to it in accordance with the terms of the Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for services rendered and disbursements incurred in connection with the transactions contemplated hereby; and
(po) 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 (Image Entertainment Inc)
