Conditions Precedent to Initial Loans and Letters of Credit. The obligation of 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 action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by 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 equivalent) of each Loan Party certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party as is set forth herein and such document as shall set forth the organizational identification number of each Loan Party, if one is issued in its jurisdiction of incorporation). (c) 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 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement. (d) The Agent shall have received, in form and substance satisfactory to the Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; provided, that the foregoing condition will be deemed fulfilled to the extent the Loan Parties use commercially reasonable efforts to obtain such agreements.
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 the Lenders Banks to make the initial Loans or of the Issuing Bank 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) The Agent Each Bank shall have received the following:
(i) A copy of resolutions approving this Agreement and authorizing the transactions contemplated in this Agreement and the other 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 releasespersons participating in a meeting can hear each other) of, terminations 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 the Administrative Agent or any Bank 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 Authorityrequest.
(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 requisite corporate action 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 the other Financing Agreements any related agreements shall be satisfactory in form and substance to Administrative Agent and the AgentRequired Banks, and Administrative Agent and the Agent 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 the Administrative Agent or any Bank may reasonably have reasonably requested in connection therewith, such documents documents, where requested by the Agent 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 equivalent) of each Loan Party certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party as is set forth herein and such document as shall set forth the organizational identification number of each Loan Party, if one is issued in its jurisdiction of incorporation)governmental authorities.
(ce) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances No legal proceeding shall be pending or change, which has any adverse change in or effect on the properties, financial condition or results of operations of the Acquired Company threatened against Borrower or any of its subsidiaries other Company by or before any, Tribunal which is material could reasonably be expected to the Acquired Company and its subsidiaries taken as have a whole (a “Closing Date Material Adverse Effect”); provided, however, that the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.
(df) The Agent consummation of such Loans or issuance of such Letter of Credit shall have received, in form and substance satisfactory to the Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes not violate any applicable provision of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; provided, that the foregoing condition will be deemed fulfilled to the extent the Loan Parties use commercially reasonable efforts to obtain such agreementsany Law.
Appears in 1 contract
Samples: Credit Agreement (Frozen Food Express Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of 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 action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by 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 equivalent) of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporation).;
(b) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since the date of Agent's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or 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) 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 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.[Intentionally Omitted]
(d) The Agent shall have received, in form and substance satisfactory to the Agent, all consentsDeposit Account Control Agreements by and among Agent, waiverseach Borrower and Guarantor, acknowledgments as the case may be and other agreements from third persons which the Agent may reasonably deem necessary each bank where such Borrower (or desirable in order to permit, protect and perfect the Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing AgreementsGuarantor) has a deposit account, including, 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 and Borrower or Guarantor, as the case may be (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(e) Agent shall have received such 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 Agent, a valid and effective endorsement to the existing title insurance policy insuring the priority, amount and sufficiency of the Mortgages;
(g) 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 Fedders) 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;
(h) Agent shall have either (i) confirmed that it has in its possession Collateral Access Agreements; provided, that satisfactory to Agent, 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;
(i) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the foregoing condition will be deemed fulfilled other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(j) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the extent Financing Agreements and such other matters as Agent may request; and
(k) the Loan Parties use commercially reasonable efforts other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to obtain such agreementsAgent, in form and substance satisfactory to Agent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of the following is a condition precedent to Agent and Lenders to make making the initial Loans or of the Issuing Bank to issue and providing 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 precedenthereunder:
(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 action and proceedings in connection with the transactions contemplated by this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by the Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority Authorities;
(b) no material adverse change shall have occurred in the assets, business or financial condition of Borrowers and including their Subsidiaries, taken as a copy whole, since the date of Agent's latest field examination and no change or event shall have occurred which would impair the ability of Borrowers or any Obligor to perform their obligations hereunder or under any of the certificate other Financing Agreements to which it is a party or of incorporation (Agent to enforce the Obligations or equivalent) of each Loan Party certified by realize upon the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party as is set forth herein and such document as shall set forth the organizational identification number of each Loan Party, if one is issued in its jurisdiction of incorporation).Collateral;
(c) Since December 31Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent may require to determine the amount of Loans available to Borrowers (including 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 Agent, 2006together with such supporting documentation as may be necessary or appropriate, there not having occurred (i) any eventand other documents and information that will enable Agent to accurately identify and verify the Collateral), 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 in each case shall be satisfactory to the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); providedAgent, however, that the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the Acquired Company in compliance with the Acquisition Agreement, or more than three (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 Business Days prior to the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.date hereof;
(d) The Agent shall have received, in form and substance satisfactory to the Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, including Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(e) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $8,500,000 after giving effect to the Purchase Agreements and the transactions contemplated thereunder;
(f) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and each bank where such Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and such Borrower (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(g) Agent shall have received and reviewed UCC search results for all jurisdictions in the United States and Canada which assets of each Borrower and Guarantor are located, which search results shall be in form and substance satisfactory to Agent;
(h) Agent shall have received, in form and substance satisfactory to Agent, the Junkfood Subordination Agreement, the Soffe Subordination Agreement and the Factor Intercreditor Agreement duly executed and delivered by the parties thereto;
(i) Agent shall have received, in form and substance satisfactory to Agent, a Uniform Commercial Code filing authorization letter, duly executed and delivered by each Borrower and the domestic Subsidiaries of each Borrower, together with appropriate financing statements on Form UCC-1 or Form UCC-3, as applicable, duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect Agent's liens in and to the collateral of such domestic Subsidiaries of Borrower, and Agent shall have received confirmation of the filing of all such financing statements;
(j) Agent shall have received, reviewed and approved the duly executed amendment to the Factor Documents;
(k) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to this Agreement, the other Financing Agreements and the security interests and liens of Agent and Lenders with respect to the Collateral and such other matters as Agent may request;
(l) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements; provided, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(m) Agent shall have received, reviewed and approved final copies of the fully executed Junkfood Asset Purchase Agreement, all exhibits and schedules thereto and all other Junkfood Purchase Documents, including the Junkfood Seller Note, and Agent shall have received assurances satisfactory to Agent that the foregoing condition Junkfood Acquisition has been, or concurrently with the funding of the initial Loans hereunder will be deemed fulfilled be, consummated in accordance with the terms and conditions thereof;
(n) Agent shall have completed its legal and business due diligence with respect to Borrowers and Junkfood, including Agent's receipt and review of (i) updated monthly financial projections of Borrowers, including statements of income and cash flows, balance sheets and Excess Availability projections and (ii) all third-party due diligence with respect to Borrowers and Junkfood;
(o) Agent shall have received a certificate, together with supporting documentation, satisfactory to it from one or more knowledgeable senior officers of Borrowers that, at the time of and after giving effect to the extent financing under this Agreement and the Junkfood Acquisition, Borrowers are Solvent;
(p) Agent shall have received, reviewed and found acceptable fully paid endorsements to Agent's mortgagee title insurance policies (or binding commitments to issue endorsements to Agent's mortgagee title insurance policies, marked to Agent's satisfaction to evidence the form of such endorsements to be delivered after the Closing Date) with respect to the title insurance policies that insure the Mortgages (other than the Alabama Mortgage and other than the Mortgage covering Real Property located in Catawba County, North Carolina (the "Catawba County Mortgage")) to create a valid lien on all Real Property subject thereto, which endorsements (and commitments therefor) shall give effect to the transactions contemplated by this Agreement, shall "down-date" the effective date of the title insurance policy (or policies) to which they relate and shall not have a specific survey exception;
(q) No Default or Event of Default shall exist or have occurred and be continuing under the Existing Soffe Loan Parties use commercially reasonable efforts Agreement; and
(r) the other Financing Agreements and all instruments and documents hereunder, including amendments to obtain such agreementsthe Mortgages, shall have been duly executed and delivered to Agent, in form and substance satisfactory to Agent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders Lender 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 Lender shall have received received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as the Agent Lender may reasonably request to evidence and effectuate the termination of all Indebtedness liens and security interests upon the Collateral, or any of it except for the Loan Parties (other than Indebtedness permitted under Section 9.9) security interes and liens set forth on Schedule 8.4 to 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.Information Certificate;
(b) All all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the AgentLender, and the Agent Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent Lender may have reasonably requested in connection therewith, such documents where requested by the Agent Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation (or equivalent) of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporation).;
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material adverse change shall have occurred in the assets, business or effect on prospects of Borrowers since the properties, financial condition 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 results event shall have occurred which would impair the ability of operations any Borrower or Guarantor to perform its obligations hereunder or under any of the Acquired Company other Financing Agreements to which it is a party or any of its subsidiaries which is material Lender to enforce the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that Obligations or realize upon the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent 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 have received, in form and substance sub-stance satisfactory to the AgentLender, all consents, waivers, acknowledgments acknowl-edgments and other agreements from third persons which the Agent Lender may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; provided;
(f) the Excess Availability as determined by Lender, as of the date hereof, shall be not less than $4,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(g) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Lender shall be the bank’s customer with respect to such deposit account as Lender may specify);
(h) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the foregoing condition will Collateral;
(i) 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 deemed fulfilled in form and substance satisfactory to the extent the Loan Parties use commercially reasonable efforts to obtain such agreements.Lender;
(j) Intentionally omitted;
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of 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 received, in form and substance reasonably satisfactory to Agent, 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) any existing financing arrangements with Borrowers and Guarantors and the termination and releaserelease by it or them, as the case may be, of any interest in and to any assets and properties of each Loan PartyBorrower 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 filedfiled 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 Loan PartyBorrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority.;
(b) All all requisite corporate 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 the Agent, and the 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 the Agent may have reasonably requested in connection therewith, such documents where requested by the 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 equivalent) other organizational documents of each Loan Party 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 Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporationincorporation or formation, as applicable).;
(c) Since December 31except as shall have been disclosed to Agent in writing prior to the date of this Agreement, 2006no Material Adverse Effect shall have occurred in the assets, there business or prospects of Borrowers since the date of Agent’s latest field examination (not having including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred (i) which would impair the ability of any event, condition, circumstances Borrower or change, which has Guarantor to perform its obligations hereunder or under any adverse change in or effect on the properties, financial condition or results of operations of the Acquired Company other Financing Agreements to which it is a party or of Agent or any of its subsidiaries which is material Lender to enforce the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that Obligations or realize upon the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent shall have completed a field review of the Records and such other information with respect to the Collateral as 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 through October 31, 2010 and test counts of the Inventory in a manner satisfactory to Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the date hereof or such earlier date as Agent may agree;
(e) Agent shall have received, in form and substance satisfactory to Agent, 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 the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(g) Closing Excess Availability as determined by Agent, as of the date hereof, shall be not less than $10,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(h) 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 Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be, and Xxxxx Fargo, with respect to each Blocked Account, 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; providedexcept, that, such existing cash management arrangements may remain in effect from the date hereof up to the date that is sixty (60) days from the date hereof with respect to any deposit accounts 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 Borrower and Guarantor, as the case may be, and Bank of Texas, duly authorized, executed and delivered by Agent, such Borrower or Guarantor, as the case may be, and Bank of Texas;
(j) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the foregoing condition will Collateral;
(k) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, which search results shall be deemed fulfilled in form and substance reasonably satisfactory to Agent;
(l) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding Equity Interests of each Borrower and 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;
(m) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee; 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) Agent shall have received, in form and substance reasonably satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the extent Financing Agreements and such other matters as Agent may request;
(o) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that Borrowers and Guarantors have received $15,000,000 in the Loan Parties use commercially reasonable efforts aggregate from one or more cash equity capital contributions made on or prior to obtain such agreementsthe 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 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 Agent, copies of the Customer 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;
(r) Agent shall have received, in form and substance satisfactory to Agent, a closing certificate, dated as of the date hereof, from the chief financial offer of Administrative Borrower confirming those matters set forth therein (the “Closing Officer’s Certificate”); and
(s) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent, in form and substance reasonably satisfactory to Agent.
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 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 received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as the Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders of all Indebtedness of the Loan Parties (other than Indebtedness permitted under Section 9.9) their respective financing arrangements with Borrowers 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.Guarantors;
(b) All all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by 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 equivalent) of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporation).;
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material adverse change shall have occurred in the assets, business or effect on prospects of Borrowers since the properties, financial condition date of Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or results event shall have occurred which would impair the ability of operations any Borrower or Guarantor to perform its obligations hereunder or under any of the Acquired Company other Financing Agreements to which it is a party or of Agent or any of its subsidiaries which is material Lender to enforce the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that Obligations or realize upon the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent shall have received, in form completed a field review of the Records and substance satisfactory such other information with respect to the Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Collateral as Agent may reasonably deem necessary or desirable in order require to permit, protect and perfect determine the Agent’s security interests in and liens upon the Collateral or amount of Loans available to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, Borrowers (including, without limitation, Collateral Access Agreements; providedcurrent 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 Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the foregoing condition will Collateral), the results of which in each case shall be deemed fulfilled satisfactory to Agent, not more than seven (7) Business Days prior to the extent the Loan Parties use commercially reasonable efforts to obtain date hereof or such agreements.earlier date as Agent may agree;
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of the Issuing Bank 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) The Agent shall have received received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as the Agent may reasonably request to evidence and effectuate the termination by the existing lenders of all Indebtedness of the Loan Parties (other than Indebtedness permitted under Section 9.9) their respective financing arrangements with Borrowers and Guarantors and the termination and releaserelease by it or them, as the case may be, of any interest in and to any assets and properties of each Loan PartyBorrower 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 filedfiled 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 Loan PartyBorrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority.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 all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by 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 equivalent) of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporation).;
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material adverse change shall have occurred in the assets, business or effect on condition of Borrowers or Aftermarket Entities since the properties, financial condition date of Agent's latest field examination and no change or results event shall have occurred which would impair the ability of operations any Borrower or Guarantor to perform its obligations hereunder or under any of the Acquired Company other Financing Agreements to which it is a party or of Agent or any of its subsidiaries which is material Lender to enforce the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that Obligations or realize upon the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent shall have received such information with respect to the Collateral as 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 Borrowers' Inventory in a manner satisfactory to Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the date hereof or such earlier date as Agent may agree;
(e) Agent shall have received, in form and substance reasonably satisfactory to the Agent, all consents, waivers, acknowledgments and other agreements (or assignments thereof) from third persons which the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; provided, that the foregoing condition will be deemed fulfilled to the extent the Loan Parties use commercially reasonable efforts to obtain such agreements.;
Appears in 1 contract
Samples: Loan and Security Agreement (Proliance International, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders Lender 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 the AgentLender, and the Agent Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent Lender may have reasonably requested in connection therewith, such documents where requested by the Agent Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation (or equivalent) formation of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporationorganization).;
(b) Intentionally omitted;
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material adverse change shall have occurred in the assets, business or effect on prospects of Borrowers since the properties, financial condition 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 results event shall have occurred which would impair the ability of operations any Borrower or Guarantor to perform its obligations hereunder or under any of the Acquired Company other Financing Agreements to which it is a party or any of its subsidiaries which is material Lender to enforce the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that Obligations or realize upon the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent 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 the AgentLender, all consents, waivers, acknowledgments and other agreements from third persons which the Agent Lender may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and 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 that, for purposes of this condition precedent, the foregoing condition will be deemed fulfilled 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 extent 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 Loan Parties use commercially reasonable efforts 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 obtain such agreementsdeposit 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 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 Administrative Agent shall have received received, in form and substance satisfactory to Administrative Agent, all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of all Indebtedness of the Loan Parties 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 Loan PartyBorrower 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 Loan PartyBorrower or Guarantor, in form acceptable for recording with the appropriate Governmental Authority.
(b) All requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the AgentAdministrative Agent (including, without limitation any works’ council advice (ondernemingsraadadvies)), and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may have reasonably requested in connection therewith, such documents where requested by the 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 foreign equivalent) of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporation).
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any No material adverse change in the business, operations, profits, assets or effect on the properties, financial condition or results of operations prospects of the Acquired Company or any of its subsidiaries which is material to the Acquired Company and its subsidiaries Subsidiaries, taken as a whole (whole, shall have occurred since the date of the most recent financial statements received by Administrative Agent or its latest field examination, if subsequent to the date of such financial statements, and no pending or 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 have a “Closing Date Material Adverse Effect”); provided, however, that the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.
(d) The 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 Lenders are permitted to rely, in form and containing assumptions and appraisal methods satisfactory to Administrative Agent by an appraiser acceptable to Administrative Agent, and (ii) field examinations of the business and collateral of Borrowers and Guarantors in accordance with Administrative Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the businesses of Borrowers and Guarantors.
(e) Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Administrative Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Collateral Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; provided, however, that Administrative Agent may elect to allow the foregoing condition will 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.
(f) Excess Availability as determined by Administrative Agent, as of the date hereof, shall be deemed fulfilled 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 in connection with the initial transactions hereunder and payment of all fees and expenses in connection therewith.
(g) Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent, Account Control Agreements by and among Administrative Agent, each U.S. Borrower and Guarantor, as the case may be, and each bank where such Borrower (or Guarantor) has an account, other than Excluded Deposit Accounts, in each case, duly authorized, executed and delivered by such bank and such Borrower or Guarantor, as the case may be (or Administrative Agent shall be the bank’s customer with respect to such deposit account as Administrative Agent may specify).
(h) Administrative Agent shall have received evidence, in form and substance satisfactory to Administrative Agent, that 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 CL Priority Collateral other than Real Property, subject only to Permitted Liens.
(i) 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 located and, to the extent available, comparable searches for the Loan Parties use commercially reasonable efforts 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 obtain Administrative Agent.
(j) Administrative Agent shall have received searches of ownership of intellectual property in the appropriate governmental offices of such agreementspatent/trademark/copyright filings as requested by Administrative Agent.
(k) Administrative Agent shall have received evidence that originals of the stock certificates, if any, representing all of the issued and outstanding shares of the Capital Stock owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto have been delivered to the Control Agent.
(l) 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 Collateral that are required to be delivered under Section 5.2(b), have been delivered to the Control Agent.
(m) 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 Administrative Agent, and certificates of insurance policies and/or endorsements naming Administrative Agent as loss payee for casualty insurance, including casualty, liability and business interruption insurance.
(n) Administrative Agent shall have received, in form and substance reasonably satisfactory to Administrative Agent, such opinion letters of counsel to Borrowers and Guarantors (other than XX Xxxxx) with respect to the Financing Agreements and such other matters as 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) 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 a copy, certified by the chief financial officer of the 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 identify Borrowers and Guarantors in accordance with the Patriot Act.
(u) This Agreement and the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Administrative Agent, in form and substance satisfactory to Administrative 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 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 received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as the Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders of all Indebtedness of the Loan Parties (other than Indebtedness permitted under Section 9.9) their respective financing arrangements with Borrowers and the termination and releaserelease by it or them, as the case may be, of any interest in and to any assets and properties of each Loan PartyBorrower, 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 filedfiled 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 Loan PartyBorrower in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority.;
(b) All all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by 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 equivalent) of each Loan Party Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower, if one is issued in its jurisdiction of incorporation).;
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material adverse change shall have occurred in the assets, business or effect on prospects of Borrowers since the properties, financial condition date of Agent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or results event shall have occurred which would impair the ability of operations any Borrower or Guarantor to perform its obligations hereunder or under any of the Acquired Company other Financing Agreements to which it is a party or of Agent or any of its subsidiaries which is material Lender to enforce the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that Obligations or realize upon the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent shall have completed a field review of the Records and such other information with respect to the Collateral as 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 Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the date hereof or such earlier date as Agent may agree;
(e) Agent shall have received, in form and substance satisfactory to the Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; provided;
(f) the Excess Availability (without giving effect to the Minimum Reserve) as determined by Agent, as of the date hereof, shall be not less than $5,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower, as the case may be and each bank where such Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower, as the case may be (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(h) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the foregoing condition will Collateral;
(i) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower, the jurisdiction of the chief executive office of each Borrower and all jurisdictions in which assets of Borrowers are located, which search results shall be deemed fulfilled in form and substance satisfactory to Agent;
(j) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower (other than Parent) and owned by any Borrower, in each case together with stock powers duly executed in blank with respect thereto;
(k) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(l) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers with respect to the extent Financing Agreements and such other matters as Agent may request; and
(m) the Loan Parties use commercially reasonable efforts other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to obtain such agreementsAgent, in form and substance satisfactory to Agent.
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 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 received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as the Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders of all Indebtedness of the Loan Parties (other than Indebtedness permitted under Section 9.9) their respective financing arrangements with Borrowers and Guarantors and the termination and releaserelease by it or them, as the case may be, of any interest in and to any assets and properties of each Loan PartyBorrower 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 filedfiled 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 Loan PartyBorrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority.;
(b) All all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by 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 equivalent) formation of each Loan Party 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 Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporation).;
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material adverse change shall have occurred in the assets, business or effect on prospects of Borrowers since the properties, financial condition date of Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or results event shall have occurred which would impair the ability of operations any Borrower or Guarantor to perform its obligations hereunder or under any of the Acquired Company other Financing Agreements to which it is a party or of Agent or any of its subsidiaries which is material Lender to enforce the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that Obligations or realize vipon the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent shall have received, in form completed a field review of the Records and substance satisfactory such other information with respect to the Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Collateral as Agent may reasonably deem necessary or desirable require in order to permit, protect and perfect the accordance with Agent’s security interests in customary practices and liens upon procedures to determine the Collateral or amount of Loans available to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, Borrowers (including, without limitation, Collateral Access Agreements; providedcurrent 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 Agent, together with such supporting documentation as may be reasonably necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the foregoing condition will Collateral), the results of which in each case shall be deemed fulfilled satisfactory to Agent, not more than five (5) Business Days prior to the extent the Loan Parties use commercially reasonable efforts to obtain date hereof or such agreements.earlier date as Agent may agree;
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 the Lenders to make the initial Loans or of the 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) The Administrative Agent shall have received received, in form and substance satisfactory to Administrative Agent, all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination of all Indebtedness of the Loan 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 Loan 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 Loan Credit Party, in form acceptable for recording with the appropriate Governmental Authority.
(b) All requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may have reasonably requested in connection therewith, such documents where requested by the 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 foreign equivalent) of each Loan Credit Party certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Credit Party as is set forth herein and such document as shall set forth the organizational identification number of each Loan Credit Party, if one is issued in its jurisdiction of incorporation).
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any No material adverse change in the business, operations, profits, assets or effect on the properties, financial condition or results of operations prospects of the Acquired Company or any of its subsidiaries which is material to the Acquired Company Borrower and its subsidiaries Subsidiaries, taken as a whole (whole, shall have occurred since the date of the most recent financial statements received by Administrative Agent or its latest field examination, if subsequent to the date of such financial statements, and no pending or 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 a “Closing Date Material Adverse Effect”); provided, however, that the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.
(d) The Administrative Agent’s completion of its business, legal and environmental due diligence, with results satisfactory to Administrative Agent.
(e) Subject to the terms of Section 9.32, Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Administrative Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Collateral Agent’s security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; provided.
(f) Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent, Account Control Agreements by and among Administrative Agent, each Credit Party, as the case may be, and each bank where such Credit Party has an account, other than Excluded Deposit Accounts, in each case, duly authorized, executed and delivered by such bank and such Credit Party, as the case may be (or Administrative Agent shall be the bank’s customer with respect to such deposit account as Administrative Agent may specify).
(g) Administrative Agent shall have received evidence, in form and substance satisfactory to Administrative Agent, that Collateral Agent has a valid perfected first priority security interest in the foregoing condition will Priority Collateral and a valid perfected second priority security interest in all of the ABL Priority Collateral, subject only to Permitted Liens.
(h) Administrative Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Credit Party, the jurisdiction of the chief executive office of each Credit Party and all jurisdictions in which assets of the Credit Parties are located, which search results shall be deemed fulfilled in form and substance satisfactory to Administrative Agent.
(i) 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, if any, representing all of the issued and outstanding shares of the Capital Stock of each Credit Party and owned by any Credit Party, in each case together with stock powers duly executed in blank with respect thereto have been delivered to the extent 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 Loan Collateral that are required to be delivered under Section 5.2(b), have been delivered to the Control Agent.
(l) 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 Administrative Agent, and certificates of insurance policies and/or endorsements naming Administrative Agent as loss payee for casualty insurance, including casualty, liability and business interruption insurance.
(m) Administrative Agent shall have received, in form and substance reasonably satisfactory to Administrative Agent, such opinion letters of counsel to the Credit Parties use commercially reasonable efforts (other than XX Xxxxx) with respect to obtain the Financing Agreements and such agreementsother matters as 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) 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 a copy, certified by the chief financial officer of the 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 identify the Credit Parties in accordance with the Patriot Act.
(t) This Agreement and the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Administrative Agent, in form and substance satisfactory to Administrative 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 the Agent and 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 received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as the Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders of all Indebtedness of the Loan Parties (other than Indebtedness permitted under Section 9.9) their respective financing arrangements with Borrowers 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.Guarantors;
(b) All all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by 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 equivalent) formation of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporationincorporation or formation).;
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material adverse change shall have occurred in the assets, business or effect on prospects of Borrowers since the properties, financial condition date of Agent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or results event shall have occurred which would impair the ability of operations any Borrower or Guarantor to perform its obligations hereunder or under any of the Acquired Company other Financing Agreements to which it is a party or of Agent or any of its subsidiaries which is material Lender to enforce the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that Obligations or realize upon the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent shall have completed a field review of the Records and such other information with respect to the Collateral as 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 Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Agent, not more than seven (7) Business Days prior to the date hereof or such earlier date as Agent may agree;
(e) Agent shall have received, in form and substance satisfactory to Agent, (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 the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; providedAgreements (other than from the lessors of retail store locations) and Credit Card Acknowledgments;
(g) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $25,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(h) Agent shall have received, in form and substance satisfactory to Agent, a Deposit Account Control Agreement by and among Agent, duly authorized, executed and delivered by Parent and BancorpSouth Bank;
(i) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the foregoing condition will Collateral;
(j) Agent shall have received and reviewed lien search results for each Borrower and Guarantor in such jurisdictions as Agent shall request, which search results shall be deemed fulfilled in form and substance satisfactory to Agent;
(k) Agent shall have received environmental audits of the Real Property to be subject to the extent Mortgage conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology satisfactory to Agent, the Loan Parties use commercially reasonable efforts results of which shall be satisfactory to obtain 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;
(n) Agent shall have received a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the date hereof as completed in a manner satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(o) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(p) 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 Agent, such agreementsopinion letters of counsel to Borrowers and Guarantors with respect to the Financing Agreements and such other matters as Agent may request; and
(t) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent, in form and substance satisfactory to Agent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of the Issuing Bank 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) 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 Partyreceived, in form acceptable for recording with the appropriate Governmental Authority.and substance satisfactory to Agent, a guaranty duly executed by each Guarantor covering all Obligations of Commerce Energy;
(b) All 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 action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by 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 equivalent) of Commerce Energy and each Loan Party Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party 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 Loan PartyGuarantor, if one is issued in its jurisdiction of incorporation).;
(cd) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material 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 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 have occurred in the United States generally assets, business or prospects of Commerce Energy since the date of Agent's latest field examination (not including for this purpose the field review referred to in clause (e) below) and no change or event shall have occurred which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) any effect that would materially impair the Acquired Company’sability of 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;
(e) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent may reasonably require to determine the amount of Loans available to 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 Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the Buyer’s results of which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the date hereof or such earlier date as defined in the Acquisition Agreement) or the Stockholders’ (as defined in the Acquisition Agreement) ability to consummate the transactions contemplated by the Acquisition Agreement.Agent may agree;
(df) The Agent shall have received, in form and substance reasonably satisfactory to the Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; provided;
(g) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $15,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(h) Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements and Investment Property Control Accounts (as applicable) by and among Agent, Commerce Energy and Guarantors, as the case may be and each bank or securities intermediary where any of Commerce Energy and Guarantors has a deposit or securities account, in each case, duly authorized, executed and delivered by such bank or securities intermediary and Borrower or Guarantors, as the case may be (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(i) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the foregoing condition will Collateral;
(j) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each of Commerce Energy and Guarantors, the jurisdiction of the chief executive office of each of Commerce Energy and Guarantors and all jurisdictions in which assets of each of Commerce Energy and Guarantors are located, which search results shall be deemed fulfilled in form and substance satisfactory to Agent;
(k) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock held by Commerce Energy or any Guarantor in Commerce Energy and Skipping Stone, in each case together with stock powers duly executed in blank with respect thereto;
(l) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(m) Agent shall have received, in form and substance reasonably satisfactory to Agent, such opinion letters of counsel to Commerce Energy and Guarantors with respect to the extent Financing Agreements and such other matters as Agent may request; and
(n) the Loan Parties use commercially reasonable efforts other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to obtain such agreementsAgent, in form and substance satisfactory to Agent.
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 the Lenders to make the initial Loans or of the Issuing Bank 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) The Agent shall have received received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as the Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders of all Indebtedness of the Loan Parties (other than Indebtedness permitted under Section 9.9) their respective financing arrangements with Borrowers and Guarantors and the termination and releaserelease by it or them, as the case may be, of any interest in and to any assets and properties of each Loan PartyBorrower 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; filed by it or any of them or their predecessors, as secured party and (ii) satisfactions and discharges of any mortgagesBorrower or Guarantor, deeds of trust or deeds to secure debt by any Loan Party, in form acceptable for recording with the appropriate Governmental Authority.as debtor;
(b) All all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by 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 equivalent) of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporation).;
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material adverse change shall have occurred in the assets, business or effect on prospects of Borrowers since the properties, financial condition date of Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or results event shall have occurred which would impair the ability of operations any Borrower or Guarantor to perform its obligations hereunder or under any of the Acquired Company other Financing Agreements to which it is a party or of Agent or any of its subsidiaries which is material Lender to enforce the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that Obligations or realize upon the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent shall have completed a field review of the Records and such other information with respect to the Collateral as 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 Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the date hereof or such earlier date as Agent may agree;
(e) Agent shall have received, in form and substance satisfactory to the Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; provided;
(f) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $2,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements or Investment Property Control Agreement (as applicable) by and among Agent, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or commodity intermediary where such Borrower or Guarantor has an account, in each case, duly authorized, executed and delivered by such Person and Borrower or Guarantor, as the case may be (or Agent shall be the customer with respect to such account as Agent may specify);
(h) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the foregoing condition will Collateral;
(i) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, which search results shall be deemed fulfilled in form and substance satisfactory to Agent;
(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) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(l) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(m) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the extent Financing Agreements and such other matters as Agent may request; and
(n) the Loan Parties use commercially reasonable efforts other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to obtain such agreementsAgent, in form and substance satisfactory to Agent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of the Issuing Bank 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) The Agent shall have received received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as the Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders of all Indebtedness of the Loan Parties (other than Indebtedness permitted under Section 9.9) their respective financing arrangements with Borrowers and the termination Guarantors and release, as the case may be, release of any security interest in and to any assets and properties of each Loan PartyBorrower and Guarantor that is not a lien indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 hereof, 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 filedfiled by it or any of them or their predecessors, as secured party and with respect to any such interests that is not a liens indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 hereof, filed against any Borrower or Guarantor, as debtor; (ii) PPSA terminations or discharges for all PPSA financing statements previously filed with respect to any such interests that is not a lien indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 hereof, filed against any Borrower or Guarantor, as debtor; and (iiiii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan PartyBorrower or Guarantor that is not a liens indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 hereof, in form acceptable for recording with the appropriate Governmental Authority.;
(b) All all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by the Agent or its counsel to be certified by appropriate corporate officers 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 equivalent) other organizational documents of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate corporate, limited liability or partnership name of such Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporation).;
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material adverse change shall have occurred 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 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 assets or business conditions of Borrowers since the date of Agent’s latest field examination (not including for this purpose the field review referred to in the United States generally clause (d) below) and no change or event shall have occurred which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) any effect that would materially impair the Acquired Company’s, ability of any Borrower or Guarantor to perform its obligations hereunder or under any of the Buyer’s (as defined in other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Acquisition Agreement) Obligations or realize upon the Stockholders’ (as defined in the Acquisition Agreement) ability to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent shall have received, in form completed a field review of the Records and substance satisfactory such other information with respect to the Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Collateral as Agent may reasonably deem necessary or desirable in order require to permit, protect and perfect determine the Agent’s security interests in and liens upon the Collateral or amount of Loans available to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, Borrowers (including, without limitation, Collateral Access Agreements; providedcurrent perpetual Inventory records and/or roll-forwards of Accounts through the date of closing and test counts of the Inventory in a manner satisfactory to Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the foregoing condition will Collateral), the results of which in each case shall be deemed fulfilled satisfactory to Agent, not more than three (3) Business Days prior to the extent the Loan Parties use commercially reasonable efforts to obtain date hereof or such agreements.earlier date as Agent may agree;
Appears in 1 contract
Samples: Loan and Security Agreement (American Biltrite Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of the Issuing Bank 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) The Agent shall have received received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as the Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders of all Indebtedness of the Loan Parties (other than Indebtedness permitted under Section 9.9) their respective financing arrangements with Borrowers and Guarantors and the termination and releaserelease by it or them, as the case may be, of any interest in and to any assets and properties of each Loan PartyBorrower 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 filedfiled 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 Loan PartyBorrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority.;
(b) All all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Agent, and the Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Agent may have reasonably requested in connection therewith, such documents where requested by 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 equivalent) of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Loan PartyBorrower or Guarantor, if one is issued in its jurisdiction of incorporation).;
(c) Since December 31, 2006, there not having occurred (i) any event, condition, circumstances or change, which has any no material adverse change shall have occurred in the assets, business or effect on prospects of Borrowers since the properties, financial condition date of Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or results event shall have occurred which would impair the ability of operations any Borrower or Guarantor to perform its obligations hereunder or under any of the Acquired Company other Financing Agreements to which it is a party or of Agent or any of its subsidiaries which is material Lender to enforce the Acquired Company and its subsidiaries taken as a whole (a “Closing Date Material Adverse Effect”); provided, however, that Obligations or realize upon the following shall 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 United States generally and which do not materially disproportionately impact the Acquired Company or any of its subsidiaries, (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 any of its subsidiaries, (B) any effect attributable to or arising out of (1) the public announcement or the pendency of the Acquisition Agreement or the performance of the Acquisition Agreement, (2) any action taken by the 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 the Acquisition Agreement; or (ii) 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 to consummate the transactions contemplated by the Acquisition Agreement.Collateral;
(d) The Agent shall have completed a field review of the Records and such other information with respect to the Collateral as 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 through the date of closing, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the date hereof or such earlier date as Agent may agree;
(e) Agent shall have received, in form and substance satisfactory to the Agent, all consents, waivers, acknowledgments and other agreements from third persons which the Agent may reasonably deem necessary or desirable in order to permit, protect and perfect the Agent’s its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements; provided;
(f) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $5,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, a 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 by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Agent shall be the bank’s customer with respect to such deposit account as Agent may specify);
(j) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the foregoing condition will Collateral;
(k) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, which search results shall be deemed fulfilled in form and substance satisfactory to Agent;
(l) Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of 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;
(m) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(n) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the extent Financing Agreements and such other matters as Agent may request; and
(o) the Loan Parties use commercially reasonable efforts other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to obtain such agreementsAgent, in form and substance satisfactory to Agent.
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Samples: Loan and Security Agreement (Image Entertainment Inc)
