Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lender to make the initial Loans and of the Issuing Bank to issue any Letter of Credit on or after the date hereof is subject to the satisfaction of the following conditions precedent on or prior to the Closing Date: (a) The Lender shall have received the following agreements, documents, certificates and opinions in form and substance reasonably satisfactory to the Lender and duly executed and delivered by the parties thereto: (i) This Agreement; (ii) The Revolving Credit Note; (iii) The Equipment Loan Note; (iv) Amendments to the Arizona Mortgage and the Florida Mortgage, and corresponding title insurance endorsements; (v) Amendments to UCC financing statements covering the Collateral; (vi) The Borrower's Lien and Possession Affidavit; (vii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof; (viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date; (ix) A certificate of the Secretary or an Assistant Secretary of the Borrower with respect to resolutions of its Board of Directors authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officer(s); (x) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof; (xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof; (xii) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state; (xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states; (xiv) An opinion addressed to the Lender from Bingxxx Xxxx XXX, counsel to the Borrower; (xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties and such other matters as the Lender may reasonably request; and (xvi) Such other documents, instruments, opinions and certificates and completion of such other matters, as the Lender may reasonably deem necessary or appropriate. (b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole. (c) All necessary filings and recordings against the Collateral shall have been completed and the Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documents. (d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lender to make the initial Loans and of the Issuing Bank or to issue any Letter the initial Letters of Credit on or after the date hereof 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 on or prior to the Closing Dateprecedent:
(a) The all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received the following agreements, all information and copies of all documents, certificates including records of requisite corporate action and opinions proceedings which Lender may have requested in form connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and substance reasonably satisfactory to including a copy of the Lender and duly executed and delivered certificate of incorporation of Borrower certified by the parties thereto:
Secretary of State (ior equivalent Governmental Authority) This Agreementwhich shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(iib) The Revolving Credit Note;
no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender’s latest field examination (iiinot including for this purpose the field review referred to in clause (c) The Equipment Loan Note;
(ivbelow) Amendments and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the Arizona Mortgage and other Financing Agreements to which it is a party or of Lender to enforce the Florida Mortgage, and corresponding title insurance endorsements;
(v) Amendments to UCC financing statements covering Obligations or realize upon the Collateral;
(vic) The Borrower's Lien Lender shall have completed a field review of the Records and Possession Affidavitsuch other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree;
(viid) Certificates Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of insurance or insurance binders evidencing compliance with Section 5.3(b) hereofthis Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card Processors;
(viiie) Notice of Borrowing or Conversion signed the Closing Date Excess Availability as determined by a Responsible Officer Lender, as of the Closing Datedate hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof 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;
(ixf) A certificate all deposit accounts of Borrower shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender;
(g) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Secretary or an Assistant Secretary Collateral;
(h) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(i) 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 Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect thereto;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to resolutions of its Board of Directors authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officer(s);
(x) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof;
(xii) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states;
(xiv) An opinion addressed to the Lender from Bingxxx Xxxx XXX, counsel to the Borrower;
(xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties Financing Agreements and such other matters as the Lender may reasonably request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000; and
(xvin) Such This Agreement, the other documents, instruments, opinions Financing Agreements and certificates all instruments and completion of such other matters, as the Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings documents hereunder and recordings against the Collateral thereunder shall have been completed duly executed and the delivered to Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documentsin form and substance satisfactory to Lender.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of On the Lender to make the initial Loans and of the Issuing Bank to issue any Letter of Credit on or after the date hereof is subject to the satisfaction Closing Date, Borrower shall have satisfied each of the following conditions precedent on or prior to the Closing Dateconditions:
(a) Borrower shall have paid to the Agents and the Lenders the fees set forth or referenced in Section 3.04 and any other accrued and unpaid fees, out-of-pocket expenses or commissions due hereunder (including, without limitation, legal fees and expenses) related to due diligence performed by the Agents or in connection with the closing of the transactions contemplated by this Agreement.
(b) The Lender Existing Facility shall be repaid in full and terminated and the Agents shall have received a pay-off letter in form and substance satisfactory to each of them evidencing such repayment and termination.
(c) The Agents shall have received the following agreementsfollowing, documents, certificates and opinions in form and substance reasonably satisfactory in all respects to the Lender Lenders and duly executed and delivered by (except for the parties theretoNotes) in sufficient number for each Lender:
(i) This the duly executed counterparts of this Agreement;
(ii) The Revolving Credit the duly executed Syndicated Notes and the duly executed Swing Line Note;
(iii) The Equipment Loan Notethe duly executed Guaranty Agreements;
(iv) Amendments a duly executed certificate of Borrower, in substantially the form of Exhibit E attached hereto and appropriately completed, certifying that (i) the representations and warranties set forth in Article 5 hereof are true and correct on and as of such date with the same effect as though made on and as of such date, (ii) Borrower and the Guarantors are in compliance with all the terms and provisions set forth in this Agreement and the other Credit Documents on their respective parts to be observed or performed, (iii) on the Closing Date, no Default or Event of Default, will have occurred or be continuing and (iv) as of the Closing Date, there has been no materially adverse change in the financial condition of Borrower and its Subsidiaries as reflected in the pro forma financial statements delivered to the Arizona Mortgage and the Florida Mortgage, and corresponding title insurance endorsements;
(v) Amendments Agents prior to UCC financing statements covering the Collateral;
(vi) The Borrower's Lien and Possession Affidavit;
(vii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ixv) A a duly executed solvency certificate of Borrower and the Guarantors, in form and substance satisfactory to the Lenders;
(vi) certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(vii) certificates of the Secretary or an Assistant Secretary of the Borrower with respect to resolutions of its Board of Directors authorizing the execution and delivery each of the Loan Documents Credit Parties certifying (i) the name, title and identifying true signature of each officer of such entities executing the officer(s) authorized to execute, deliver and take all other actions required under this AgreementCredit Documents, and providing specimen signatures (ii) the bylaws or comparable governing documents of such officer(s)entities;
(xviii) The Certificate of Incorporation certified copies of the Borrower and all amendments and supplements thereto, as filed in the office certificate or articles of incorporation of each Credit Party certified by the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by or the Secretary or an Assistant Secretary of the Borrower such Credit Party, together with certificates of good standing or existence, as being a true and correct copy thereof;
(xii) A certificate of may be available from the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence or organization of such Credit Party;
(ix) copies of all documents and good standing instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(x) certificates of insurance issued on behalf of insurers of Borrower and the Guarantors, describing in such statereasonable detail the types and amounts of insurance maintained by Borrower and the Guarantors;
(xi) the favorable opinion of Jones, Day, Reavis & Pogue, counsel to the Credit Parties, substantiaxxx xn the fxxx xx Exxxxxx F-1 addressed to the Agents and each of the Lenders and the favorable opinion of in-house general counsel to the Credit Parties, substantially in the form of Exhibit F-2 addressed to the Agents and each of the Lenders;
(xii) all corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Required Lenders;
(xiii) A certificate a three-year forecast of the Secretaries of State of each state in which Consolidated Companies for the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states;period commencing January 1, 2003; and
(xiv) An opinion addressed to audited financial statements for the Lender from Bingxxx Xxxx XXXConsolidated Companies for the fiscal year ended December 31, counsel to the Borrower;
(xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties and such other matters as the Lender may reasonably request; and
(xvi) Such other documents, instruments, opinions and certificates and completion of such other matters, as the Lender may reasonably deem necessary or appropriate2001.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documents.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of the Lender following is a condition precedent to make Agent and Lenders making the initial Loans and of providing the Issuing Bank to issue any Letter initial Letters of Credit on or after the date hereof is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datehereunder:
(a) The Lender all requisite corporate action and proceedings in connection with the transactions contemplated by this Agreement and the other Financing Agreements shall have received the following agreements, documents, certificates and opinions be satisfactory in form and substance reasonably to Agent, and Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Agent may have requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authorities;
(b) all financial information, projections, budgets, business plans, cash flows and such other information as Agent shall request from time to time, including (i) projected quarterly balance sheets, income statements, statements of cash flows and Excess Availability of Borrowers and Guarantors for the period commencing July 1, 2007 through the end of the 2008 fiscal year of Borrowers, (ii) projected annual balance sheets, income statements, statements of cash flows and Excess Availability of Borrowers and Guarantors for the period commencing July 1, 2007 through the end of the 2010 fiscal year of Borrowers (and in addition thereto, further projected income statements of Borrowers and Guarantors commencing July 1, 2007 through the end of the 2011 and 2012 fiscal years of Borrowers), 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 Agent, and an opening pro forma balance sheet for Borrowers and Guarantors in form and substance satisfactory to Agent, (iii) any updates or modifications to the Lender projected financial statements of Borrowers and Guarantors described hereinabove heretofore received by Agent, in each case in form and substance satisfactory to Agent, and (iv) an aging of Accounts as of August 31, 2007, perpetual Inventory records as of August 31, 2007 and/or rollforwards of Accounts and Inventory through the Closing Date, together with supporting documentation, each in form and substance satisfactory to Agent;
(c) no material adverse change shall have occurred in the assets, business or financial condition of Borrowers and their Subsidiaries, taken as a 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 other Financing Agreements to which it is a party or of Agent to enforce the Obligations or realize upon the Collateral;
(d) Agent shall have completed its business and legal due diligence, with results satisfactory to Agent, including (i) receipt and review of third party appraisals, in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent on which Agent and Lenders are permitted to rely, (ii) field examinations of the business and Collateral of Borrowers in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the businesses of Borrowers, and (iii) to the extent not delivered in connection with the Existing Loan Agreement, environmental assessments of the Real Property of Borrowers conducted by an independent environmental engineering firm acceptable to Agent and in form, scope and methodology acceptable to Agent, and Agent shall be satisfied with the corporate and capital structure and management of Borrowers and with all legal, tax, accounting and other matters relating to Borrowers;
(e) Agent shall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third Persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) the 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 contemplated hereunder;
(g) 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);
(h) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest and lien in all of the Collateral;
(i) 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;
(j) Agent shall have received, in form and substance satisfactory to Agent, an amendment to the Factor Intercreditor Agreement duly executed and delivered by the parties thereto:
(i) This Agreement;
(iik) The Revolving Credit NoteAgent shall have received, in form and substance satisfactory to Agent, a Uniform Commercial Code 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 Borrowers and their domestic Subsidiaries, and Agent shall have received confirmation of the filing of all such financing statements;
(iiil) The Equipment Loan NoteAgent shall have received the Solvency Certificate and all financial statements attached as exhibits thereto;
(ivm) Amendments Agent shall have received, at least five (5) Business Days prior to the Arizona Mortgage Closing Date, a certificate reasonably satisfactory to the Agent, for benefit of itself and the Florida MortgageLenders, provided by Borrowers that sets forth information required by the USA PATRIOT Act including, without limitation, the identity of the Obligors, the name and corresponding title insurance endorsementsaddress of the Obligors and other information that will allow the Administrative Agent or any Lender, as applicable, to identify the Obligors in accordance with the USA PATRIOT Act;
(vn) Amendments 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 UCC financing statements covering the CollateralAgent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(vio) The Borrower's Lien Agent shall have received, in form and Possession Affidavit;
(vii) Certificates substance satisfactory to Agent, such opinion letters of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ix) A certificate of the Secretary or an Assistant Secretary of the Borrower counsel to Borrowers and Guarantors with respect to resolutions of its Board of Directors authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officer(s);
(x) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof;
(xii) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states;
(xiv) An opinion addressed to the Lender from Bingxxx Xxxx XXX, counsel to the Borrower;
(xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties Financing Agreements and such other matters as the Lender Agent may reasonably request; and
(xvip) Such the other documentsFinancing Agreements and all instruments and documents hereunder, instrumentsincluding amendments to the Mortgages, opinions and certificates and completion of such other matters, as the Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings and recordings against the Collateral shall have been completed duly executed and the Lender's liens on the Collateral shall have been perfecteddelivered to Agent, as contemplated by the Security Documentsin form and substance satisfactory to Agent.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of the Lender following is a condition precedent to make Agent and Lenders making the initial Loans and of the each Issuing Bank to issue any Letter providing the initial Letters of Credit on or after the date hereof is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datehereunder:
(a) The Lender Agent shall have received all financial information, projections, budgets, business plans, cash flows and such other information as Agent and Syndication Agent shall have requested prior to the following agreementsdate hereof, including (i) projected quarterly consolidated balance sheets, income statements, statements of cash flows and availability (including the Borrowing Base) of Obligors for the period through the fiscal year ending on or about January 31, 2012, (ii) projected annual consolidated balance sheets, income statements, statements of cash flows and availability (including the Borrowing Base) of Obligors through the fiscal year ending on or about January 31, 2014, 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 Agent and Syndication Agent, and an opening pro forma balance sheet for Obligors in form and substance satisfactory to Agent and Syndication Agent, and (iii) any updates or modifications to the projected financial statements of Obligors received by Agent prior to the date hereof, in each case in form and substance satisfactory to Agent and Syndication Agent;
(b) 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 agings of receivables, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date hereof 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;
(c) Agent shall have received, at the expense of Borrowers, a written report or appraisal as to the Inventory of Obligors in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(d) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Lenders shall have received all information and copies of all documents, including records of requisite corporate, and other action and proceedings which Agent may have reasonably requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation, formation or other organization document of any of Borrowers certified by the Secretary of State (or equivalent Governmental Authority);
(e) no material adverse change shall have occurred in the assets, businesses or prospects of Obligors, taken as a whole, since the date of the commencement of Agent’s latest field examination and no change or event shall have occurred which would impair the ability of Obligors, taken as a whole, to perform their obligations hereunder or under any of the other Financing Agreements to which any of them is party or of Agent to enforce the Obligations or realize upon the Collateral. Without limiting the generality of the foregoing, no investigation, litigation or other proceedings shall be pending or threatened against any Obligor as of the closing which could have a Material Adverse Effect in the good faith determination of Agent and Lenders;
(f) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral subject to Permitted Liens;
(g) Agent shall have received, in form and substance satisfactory to Agent, (i) a guarantee of payment by each Borrower of the Obligations owed by each of the Obligors and the Additional L/C Debtors, and (ii) a guarantee of payment by all Guarantors of all Obligations;
(h) Agent and Lenders shall be satisfied that as of the date hereof, (i) Obligors taken as a whole, are solvent or will continue to be solvent after giving effect to the transactions contemplated hereby, (ii) Obligors, taken as a whole, do not have unreasonably small capital after the consummation of the transactions contemplated hereby to continue to engage in its business, and (iii) Obligors, taken as a whole, have not incurred liabilities as a result of the transactions contemplated hereby that are beyond their ability to pay as such liabilities mature;
(i) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $150,000,000 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 transactions hereunder;
(j) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and the jurisdiction of the chief executive office of each Borrower, which search results shall be in form and substance satisfactory to Agent;
(k) to the extent not previously delivered to Agent, Agent shall have received originals of the shares of the stock certificates representing all of the issued and opinions outstanding shares of the Capital Stock of each Obligor (other than Parent) and owned by any Obligor, 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 reasonably satisfactory to the Lender Agent, such opinion letters of counsel to Borrowers and duly executed and delivered by the parties thereto:
(i) This Agreement;
(ii) The Revolving Credit Note;
(iii) The Equipment Loan Note;
(iv) Amendments to the Arizona Mortgage and the Florida Mortgage, and corresponding title insurance endorsements;
(v) Amendments to UCC financing statements covering the Collateral;
(vi) The Borrower's Lien and Possession Affidavit;
(vii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ix) A certificate of the Secretary or an Assistant Secretary of the Borrower Obligors with respect to resolutions of its Board of Directors authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officer(s);
(x) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof;
(xii) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states;
(xiv) An opinion addressed to the Lender from Bingxxx Xxxx XXX, counsel to the Borrower;
(xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties Financing Agreements and such other matters as the Lender Agent may reasonably request; and
(xvin) Such the other documents, instruments, opinions Financing Agreements and certificates all instruments and completion of such other matters, as the Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings documents hereunder and recordings against the Collateral thereunder shall have been completed duly executed and the Lender's liens on the Collateral shall have been perfecteddelivered to Agent, as contemplated by the Security Documentsin form and substance reasonably satisfactory to Agent.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of On the Lender to make the initial Loans and of the Issuing Bank to issue any Letter of Credit on or after the date hereof is subject to the satisfaction Closing Date, Borrower shall have satisfied each of the following conditions precedent on or prior to the Closing Dateconditions:
(a) Borrower shall have paid to the Administrative Agent and the Lenders the fees set forth or referenced in Section 3.04 and any other accrued and unpaid fees, out-of-pocket expenses or commissions due hereunder (including, without limitation, legal fees and expenses) related to due diligence performed by the Administrative Agent or in connection with the closing of the transactions contemplated by this Agreement.
(b) The Lender indebtedness under the Existing Credit Agreement shall be repaid in full and the commitments thereunder terminated and the Administrative Agent shall have received a pay-off letter in form and substance satisfactory to it evidencing such repayment and termination.
(c) The Administrative Agent shall have completed, to its satisfaction, all legal, tax, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Parent and its Subsidiaries in scope and determination satisfactory to the Administrative Agent in its sole discretion.
(d) The Administrative Agent shall have received the following agreementsfollowing, documents, certificates and opinions in form and substance reasonably satisfactory in all respects to the Lender Lenders and duly executed and delivered by (except for the parties theretoNotes) in sufficient number for each Lender:
(i) This the duly executed counterparts of this Agreement;
(ii) The Revolving Credit the duly executed Syndicated Notes and the duly executed Swing Line Note;
(iii) The Equipment Loan Notethe duly executed Guaranty Agreements;
(iv) Amendments a duly executed certificate of Parent, in substantially the form of Exhibit F attached hereto and appropriately completed, certifying that (i) the representations and warranties set forth in Article V hereof are true and correct on and as of such date with the same effect as though made on and as of such date, (ii) Borrower and the Guarantors are in compliance with all the terms and provisions set forth in this Agreement and the other Credit Documents or their respective parts to be observed or performed, (iii) on the Closing Date, no Default or Event of Default, will have occurred or be continuing and (iv) as of the Closing Date, there has been no materially adverse change in the financial condition of the Parent and its Subsidiaries as reflected in the pro forma financial statements delivered to the Arizona Mortgage and the Florida Mortgage, and corresponding title insurance endorsements;
(v) Amendments Administrative Agent prior to UCC financing statements covering the Collateral;
(vi) The Borrower's Lien and Possession Affidavit;
(vii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ixv) A a duly executed solvency certificate of Borrower and the Guarantors, in form and substance satisfactory to the Lenders;
(vi) certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(vii) certificates of the Secretary or an Assistant Secretary of the Borrower with respect to resolutions of its Board of Directors authorizing the execution and delivery each of the Loan Documents Credit Parties certifying (i) the name, title and identifying true signature of each officer of such entities executing the officer(s) authorized to execute, deliver and take all other actions required under this AgreementCredit Documents, and providing specimen signatures (ii) the bylaws or comparable governing documents of such officer(s)entities;
(xviii) The Certificate of Incorporation certified copies of the Borrower and all amendments and supplements thereto, as filed in the office certificate or articles of incorporation of each Credit Party certified by the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by or the Secretary or an Assistant Secretary of the Borrower such Credit Party, together with certificates of good standing or existence, as being a true and correct copy thereof;
(xii) A certificate of may be available from the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence or organization of such Credit Party;
(ix) copies of all documents and good standing instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(x) certificates of insurance issued on behalf of insurers of Borrower and the Guarantors, describing in such statereasonable detail the types and amounts of insurance maintained by Borrower and the Guarantors;
(xi) the favorable opinion of Xxxxx Day, counsel to the Credit Parties, substantially in the form of Exhibit G-1 addressed to the Administrative Agent and each of the Lenders and the favorable opinion of in-house general counsel to the Credit Parties, substantially in the form of Exhibit G-2 addressed to the Administrative Agent and each of the Lenders;
(xii) all corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Required Lenders;
(xiii) A certificate projected income statements, projected balance sheets, and projected statements of cash flow of the Secretaries of State of each state Consolidated Companies, all prepared in which accordance with GAAP, on an annual basis for the Borrower is doing business as to five (5) year period following the due qualification and good standing of the Borrower as a foreign corporation in such statesClosing Date;
(xiv) An opinion addressed to unaudited financial statements of the Lender from Bingxxx Xxxx XXXConsolidated Companies for all interim quarterly periods ending after June 30, counsel to 2006 and through the Borrower;Closing Date; and
(xv) A certificate of audited financial statements for the chief financial officer of Consolidated Companies for the Borrower as to the solvency of the Borrowerfiscal year ended December 31, the accuracy of the Borrower's representations and warranties and such other matters as the Lender may reasonably request; and
(xvi) Such other documents, instruments, opinions and certificates and completion of such other matters, as the Lender may reasonably deem necessary or appropriate2005.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documents.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of the Lender following is a condition precedent to make Agent and Lenders making the initial Loans and of the each Issuing Bank to issue any Letter providing the initial Letters of Credit on or after the date hereof is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datehereunder:
(a) The Lender Agent shall have received all financial information, projections, budgets, business plans, cash flows and such other information as Agent and Syndication Agent shall have requested prior to the following agreementsdate hereof, including (i) projected quarterly consolidated balance sheets, income statements, statements of cash flows and availability of Obligors for the period through the fiscal year ending on or about January 31, 2011, (ii) projected annual consolidated balance sheets, income statements, statements of cash flows and availability of Obligors through the fiscal year ending on or about January 31, 2012, 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 Agent and Syndication Agent, and an opening pro forma balance sheet for Obligors in form and substance satisfactory to Agent and Syndication Agent, and (iii) any updates or modifications to the projected financial statements of Obligors received by Agent prior to the date hereof, in each case in form and substance satisfactory to Agent and Syndication Agent;
(b) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent or Syndication Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, current agings of receivables, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date hereof and test counts of the Inventory in a manner satisfactory to Agent and Syndication 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 and Syndication Agent;
(c) Agent shall have received, at the expense of Borrowers, a written report or appraisal as to the Inventory of Obligors in form, scope and methodology reasonably acceptable to Agent and Syndication Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(d) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Lenders shall have received all information and copies of all documents, including records of requisite corporate, and other action and proceedings which Agent may have reasonably requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation, formation or other organization document of any of Borrowers certified by the Secretary of State (or equivalent Governmental Authority);
(e) no material adverse change shall have occurred in the assets, businesses or prospects of Obligors, taken as a whole, since the date of the commencement of Agent’s latest field examination and no change or event shall have occurred which would impair the ability of Obligors, taken as a whole, to perform their obligations hereunder or under any of the other Financing Agreements to which any of them is party or of Agent to enforce the Obligations or realize upon the Collateral. Without limiting the generality of the foregoing, no investigation, litigation or other proceedings shall be pending or threatened against any Obligor as of the closing which could have a Material Adverse Effect in the good faith determination of Agent and Lenders;
(f) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral subject to Permitted Liens;
(g) Agent shall have received, in form and substance satisfactory to Agent, (i) a guarantee of payment by each Borrower of the Obligations owed by each of the Obligors and the Additional L/C Debtors, and (ii) a guarantee of payment by all Guarantors of all Obligations;
(h) Agent and Lenders shall be satisfied that as of the date hereof, (i) Obligors taken as a whole, are solvent or will continue to be solvent after giving effect to the transactions contemplated hereby, (ii) Obligors, taken as a whole, do not have unreasonably small capital after the consummation of the transactions contemplated hereby to continue to engage in its business, and (iii) Obligors, taken as a whole, have not incurred liabilities as a result of the transactions contemplated hereby that are beyond their ability to pay as such liabilities mature;
(i) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $150,000,000 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 transactions hereunder;
(j) Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and the jurisdiction of the chief executive office of each Borrower, which search results shall be in form and substance satisfactory to Agent;
(k) to the extent not previously delivered to Agent, Agent shall have received originals of the shares of the stock certificates representing all of the issued and opinions outstanding shares of the Capital Stock of each Obligor (other than Parent) and owned by any Obligor, 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 reasonably satisfactory to the Lender Agent, such opinion letters of counsel to Borrowers and duly executed and delivered by the parties thereto:
(i) This Agreement;
(ii) The Revolving Credit Note;
(iii) The Equipment Loan Note;
(iv) Amendments to the Arizona Mortgage and the Florida Mortgage, and corresponding title insurance endorsements;
(v) Amendments to UCC financing statements covering the Collateral;
(vi) The Borrower's Lien and Possession Affidavit;
(vii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ix) A certificate of the Secretary or an Assistant Secretary of the Borrower Obligors with respect to resolutions of its Board of Directors authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officer(s);
(x) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof;
(xii) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states;
(xiv) An opinion addressed to the Lender from Bingxxx Xxxx XXX, counsel to the Borrower;
(xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties Financing Agreements and such other matters as the Lender Agent may reasonably request; and
(xvin) Such the other documents, instruments, opinions Financing Agreements and certificates all instruments and completion of such other matters, as the Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings documents hereunder and recordings against the Collateral thereunder shall have been completed duly executed and the Lender's liens on the Collateral shall have been perfecteddelivered to Agent, as contemplated by the Security Documentsin form and substance reasonably satisfactory to Agent.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lender Lenders to make the initial Loans and of the Issuing Bank to issue any Letter provide for the initial Letters of Credit on or after the date hereof hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Agent shall have received evidence that:
(i) Borrowers have received not less than $250,000,000 in cash as an equity contribution from the CD&R Investors in exchange for Equity Interests in the form of preferred stock of Parent, on terms and conditions substantially as provided in the Investment Documents or otherwise reasonably acceptable to Agent;
(ii) a portion of the existing Term Loan Debt shall have been repaid, so that after giving effect to all payments in respect of the Term Loan Documents, the outstanding principal balance of the Term Loan Debt thereunder will not exceed $150,000,000 as of the date hereof;
(iii) the Administrative Agent shall receive, substantially concurrently with the satisfaction of the other conditions precedent set forth in this Section 4.1, evidence reasonably satisfactory to it, that the Parent shall have accepted for redemption the tender of Convertible Notes in an aggregate principal amount not less than $171,000,000 and placed sufficient funds in a segregated account to pay the maximum consideration necessary to redeem all of the Convertible Notes not so redeemed pursuant to the terms of the Indenture;
(b) Agent shall have received true, complete and correct copies of the Investment Documents and the transactions provided for therein shall have been consummated, or substantially concurrently with the initial Loans hereunder shall be consummated, substantially in accordance with the Investment Documents and all material conditions precedent to the consummation of such transactions set forth in the Investment Documents shall have been satisfied or waived;
(c) Agent shall have received true, complete and correct copies of the Term Loan Documents (including any amendment or amendment and restatement thereof on or about the date hereof, but excluding any Mortgages executed and delivered after the date hereof), as executed and delivered by the parties thereto, which shall be in form and substance reasonably satisfactory to Agent;
(d) Agent shall have received, in form and substance reasonably satisfactory to Agent, the Intercreditor Agreement, duly authorized, executed and delivered by the Term Loan Agent for itself and on behalf other Term Loan Lenders and acknowledged by each Borrower and Guarantor;
(e) all requisite corporate resolutions or equivalent action by Borrowers and Guarantors in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance to Agent, and Agent shall have received such resolutions or records of equivalent action, certified where requested by Agent or its counsel by appropriate corporate officers of Borrowers and Guarantors and a copy of the certificate of incorporation or formation of each Borrower and Guarantor certified by the applicable Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein;
(f) Agent shall have received a certificate of each Borrower and Guarantor, dated the Closing Date, as to the incumbency and signature of the officers of such Borrower or Guarantor executing any of the Financing Agreements, reasonably satisfactory in form and substance to Agent executed by a Responsible Officer and the Secretary or any Assistant Secretary of such Borrower or Guarantor;
(g) No material adverse change shall have occurred in the business, operations or assets of Borrowers or Guarantors since November 2, 2008 and no change or event shall have occurred which would impair in any material respect the ability of any Borrower or Guarantor to perform its payment obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent to enforce the Obligations or realize upon the Collateral for itself and for the benefit of the Secured Parties;
(h) Agent shall have completed an updated field review of the Records (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), the results of which shall be consistent in all material respects with the information received in the prior field examinations conducted by Agent taken as a whole or to the extent not consistent shall be otherwise reasonably satisfactory to Agent, not more than five (5) Business Days prior to the date hereof or such earlier date as Agent may agree;
(i) Agent shall have received all consents, waivers, acknowledgments and other agreements (other than Collateral Access Agreements), in form and substance reasonably satisfactory to Agent, from third persons necessary in order to permit, protect and perfect the Liens of Agent upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements;
(j) Borrowers and Guarantors shall have used commercially reasonable efforts to obtain Collateral Access Agreements (it being understood that Borrowers shall not be required to incur any expense, provide any security or agree to any adverse term or condition exclusively and directly required in order to obtain such Collateral Access Agreement) and to the extent not delivered prior to the date hereof Borrowers shall continue to use such efforts hereafter to obtain such Collateral Access Agreements for a reasonable period thereafter, and in any event not more than thirty (30) days after the date hereof;
(k) Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account as contemplated by Section 6.6 hereof, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be, for each of the deposit accounts of Borrowers and Guarantors, including the Concentration Account and the deposit account(s) used for Qualified Cash, but excluding (i) any deposit accounts where the balance is, and is reasonably anticipated at all times to be, less than $100,000, but only to the extent that the aggregate amount of funds in all such deposit accounts is less than $500,000, (ii) any deposit account that is specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Borrower’s or Guarantor’s employees, (iii) any disbursement account, (iv)any account containing collateral to secure the obligations of Borrowers and Guarantors with respect to the Existing Letters of Credit, and (v) the account at Wachovia Securities Special Equities Group in the NCI Building Systems, Inc., account number [intentionally omitted], to the extent that no new deposits are made in such account after the date hereof.
(l) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that as of the date hereof and after giving effect to the application of proceeds of the initial Revolving Loans, the restructuring of the Term Loan Documents, the repayment of a portion of the Convertible Notes and the establishment of the Convertible Note Account for the remaining balance) and the other Transactions and after provision for payment of all fees and expenses of the Transactions (i) the sum of Excess Availability plus unrestricted cash and Cash Equivalents of Borrowers (other than Qualified Cash) shall be not less than $90,000,000 and (ii) the sum of the aggregate amount of Loans and Letters of Credit requested and made or outstanding as of the Closing Date shall not exceed $20,000,000.
(m) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that Agent has valid and perfected first priority security interests in all of the Working Capital Priority Collateral (as defined in the Intercreditor Agreement) and valid, perfected second priority security interests in all of the Term Loan Priority Collateral (to the extent provided herein), except, in each case, as to (i) Excluded Property, (ii) priority, subject to Permitted Liens, to the extent (in the case of Working Capital Priority Collateral (as defined in the Intercreditor Agreement)) that such liens have priority over the liens of Agent under applicable law or under the terms of a written agreement to which Agent is a party, (iii) any deposit accounts, to the extent that Agent has not required a Deposit Account Control Agreement pursuant to the terms hereof, (iv) Intellectual Property constituting Collateral, until the filings identified in Section 8.14 are made and accepted, and (v) all Real Property constituting Collateral, if Administrative Borrower has used commercially reasonable efforts to provide the Mortgages but completion thereof may not be accomplished on the Closing Date, then delivery of the Mortgages shall not constitute a condition precedent to the Closing Date if the Administrative Borrower agrees to deliver or cause to be delivered the Mortgages, and takes or causes to be taken such other actions to as may be reasonably necessary to perfect the security interests of such Mortgages;
(n) Agent shall have received and reviewed UCC, tax and judgment lien search results for the location of each Borrower and Guarantor (determined in accordance with the Uniform Commercial Code of the applicable jurisdiction and any other applicable law) and all counties and provinces in which property or assets of Borrowers and Guarantors are located, which search results shall not disclose any Liens other than the Permitted Liens;
(o) Agent shall have received, in similar form as and to the extent received as of the Closing Date by the Term Loan Agent, a title insurance policy issued by a title insurance company and to the extent acceptable to Term Loan Agent;
(p) Agent shall have received a borrowing request, if applicable, and a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the last day of the most recent month ended prior to the date hereof as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(q) Agent shall have received any updates or modifications to the projected financial statements of Borrowers and Guarantors previously delivered to Agent on October 14, 2009 based on actuals as of August 2, 2009, in each case, containing information that is reasonably satisfactory to Agent and in a form consistent with the information received by Agent and Lenders prior to the date hereof, and otherwise reasonably satisfactory to Agent;
(r) 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;
(s) Agent shall have received, each in form and substance reasonably satisfactory to Agent, the following opinion letters of counsel(s) to Borrowers and Guarantors:
(i) the executed legal opinion of Debevoise & Xxxxxxxx LLP, special New York counsel to CD&R Associates VIII, Ltd., the general partner to Xxxxxxx, Dubilier & Rice Fund VIII, L.P.;
(ii) the executed legal opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to NCI Systems, Inc. and Xxxxxxxxx-Ceco II Corporation;
(iii) the executed legal opinion of Holland & Xxxx LLP, special Nevada counsel to NCI Group, Inc.; and
(iv) to the extent received by the Term Loan Agent as of the Closing Date, the executed legal opinion of counsel to the owner of the Real Property subject to a Mortgage;
(t) Agents and Lenders shall have received all fees and expenses reasonably required to be paid or delivered by Borrowers to them in respect of the Transaction on or prior to the Closing Date:, including the fees referred to in Section 3.2; and
(au) The Lender Agent shall have received the following agreements, documents, certificates other Financing Agreements to be executed and opinions in form and substance reasonably satisfactory to delivered on the Lender and Closing Date as duly executed and delivered by the parties thereto:
(i) This Agreement;
(ii) The Revolving Credit Note;
(iii) The Equipment Loan Note;
(iv) Amendments thereto to Agent. Without limiting the generality of the provisions of Section 14.3 for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Agent shall have received notice from such Lender prior to the Arizona Mortgage and the Florida Mortgage, and corresponding title insurance endorsements;
(v) Amendments to UCC financing statements covering the Collateral;
(vi) date hereof specifying its objection thereto. The Borrower's Lien and Possession Affidavit;
(vii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ix) A certificate of the Secretary or an Assistant Secretary of the Borrower with respect to resolutions of its Board of Directors authorizing the execution and delivery hereof by Lenders hereunder shall conclusively be deemed to constitute an acknowledgment by Agent and each Lender that each of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under conditions precedent set forth in this Agreement, and providing specimen signatures of such officer(s);
(x) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof;
(xii) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states;
(xiv) An opinion addressed to the Lender from Bingxxx Xxxx XXX, counsel to the Borrower;
(xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties and such other matters as the Lender may reasonably request; and
(xvi) Such other documents, instruments, opinions and certificates and completion of such other matters, as the Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings and recordings against the Collateral Section 4.1 shall have been completed and the Lender's liens on the Collateral satisfied in accordance with its respective terms or shall have been perfected, as contemplated irrevocably waived by the Security Documentssuch Person.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Samples: Loan and Security Agreement (Nci Building Systems Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lender to make the initial Loans and of the Issuing Bank to issue any Letter of Credit on or after the date hereof is subject to the satisfaction of the following conditions precedent on or prior to On the Closing Date:
, all obligations of Borrower hereunder incurred prior to such date (a) The Lender including, without limitation, Borrower's obligations to reimburse the reasonable fees and expenses of counsel to the Agent and any fees and expenses payable to the Agent, the Co-Agents, the Lenders and their Affiliates as previously agreed with Borrower), shall have been paid in full, and the Agent shall have received the following agreementsfollowing, documents, certificates and opinions in form and substance reasonably satisfactory in all respects to the Lender and duly executed and delivered by the parties theretoAgent:
(ia) This the duly executed counterparts of this Agreement;
(iib) The the duly executed Revolving Credit NoteNotes evidencing the Commitments and the duly executed Bid Facility Notes and the duly executed Swing Line Note evidencing the Swing Line Subcommitment;
(iiic) The Equipment Loan Notethe duly executed Guaranty Agreement;
(ivd) Amendments to a duly executed certificate of Borrower in substantially the Arizona Mortgage form of Exhibit I attached hereto and the Florida Mortgage, and corresponding title insurance endorsementsappropriately completed;
(ve) Amendments to UCC financing statements covering certificates of the CollateralSecretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(vif) The Borrower's Lien and Possession Affidavit;
(vii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ix) A certificate certificates of the Secretary or an Assistant Secretary of the Borrower with respect to resolutions of its Board of Directors authorizing the execution and delivery each of the Loan Documents Credit Parties certifying (i) the name, title and identifying true signature of each officer of such entities executing the officer(s) authorized to execute, deliver and take all other actions required under this AgreementCredit Documents, and providing specimen signatures (ii) the bylaws or comparable governing documents of such officer(s)entities;
(xg) The Certificate of Incorporation certified copies of the Borrower and all amendments and supplements thereto, as filed in the office certificate or articles of incorporation of each Credit Party certified by the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by or the Secretary or an Assistant Secretary of the Borrower such Credit Party, together with certificates of good standing or existence, as being a true and correct copy thereof;
(xii) A certificate of may be available from the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing or organization of the Borrower in such stateCredit Party;
(xiiii) A certificate of certificates, reports and other information as the Secretaries of State of each state Agent may reasonably request from any Credit Party or any Consolidated Company in which order to satisfy the Borrower is doing business Lenders as to the due qualification absence of any material liabilities or obligations arising from (i) litigation (including without limitation, products liability and good standing patent infringement claims) pending or threatened against the Credit Parties or any of their respective Consolidated Subsidiaries, (ii) matters relating to employees of the Borrower as a foreign corporation in Credit Parties or any of their respective Consolidated Subsidiaries, including employee relations, collective bargaining agreements, plans and other compensation and employee benefit plans, and (iii) environmental and employee health and safety exposures to which the Credit Parties or any of their respective Consolidated Subsidiaries may be subject, and the plans of the such statesPerson with respect thereto;
(xivj) An the favorable opinion of Smitx, Xxmbxxxx & Xussxxx, xxunsel to the Credit Parties, substantially in the form of Exhibit J addressed to the Lender from Bingxxx Xxxx XXXAgent, counsel to the BorrowerCo-Agents and each of the Lenders;
(xvk) A certificate of the chief financial officer of Guarantor shall have executed and delivered the Borrower as Parent Credit Agreement and all conditions precedent to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties and such other matters as the Lender may reasonably requestinitial funding thereunder shall have been fulfilled or waived; and
(xvil) Such all corporate proceedings and all other documentslegal matters in connection with the authorization, instrumentslegality, opinions validity and certificates and completion enforceability of such other matters, as the Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation Credit Documents shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages reasonably satisfactory in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings form and recordings against the Collateral shall have been completed and the Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documents.
(d) The Borrower shall have paid substance to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing DateRequired Lenders.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lender to make the initial Loans and of the Issuing Bank to issue any Letter of Credit on or after the date hereof is subject to the satisfaction of the following conditions precedent on or prior to On the Closing Date:
, all obligations of Intermet hereunder incurred prior to such date (a) The Lender including, without limitation, Intermet's obligations to reimburse the reasonable fees and expenses of counsel to the Agent and any fees and expenses payable to the Agent, the Co-Agents, the Lenders and their Affiliates as previously agreed with Intermet), shall have been paid in full, and the Agent shall have received the following agreementsfollowing, documents, certificates and opinions in form and substance reasonably satisfactory in all respects to the Lender and duly executed and delivered by the parties theretoAgent:
(ia) This the duly executed counterparts of this Agreement;
(iib) The the duly executed Revolving Credit NoteNotes evidencing the Commitments and the duly executed Bid Facility Notes;
(iiic) The Equipment Loan Notethe duly executed Guaranty Agreement;
(ivd) Amendments to certificate of Intermet in substantially the Arizona Mortgage form of Exhibit I attached hereto and the Florida Mortgage, and corresponding title insurance endorsementsappropriately completed;
(ve) Amendments certificates of the Secretary or Assistant Secretary of each of the Credit Parties (or, in the case of any Foreign Subsidiary, a comparable company officer) attaching and certifying copies of the resolutions of the boards of directors (or, in the case of any Foreign Subsidiary, the comparable governing body of such entity) of the Credit Parties, authorizing as applicable (i) the execution, delivery and performance of the Credit Documents, and (ii) the granting of the pledges and security interests granted pursuant to UCC financing statements covering the CollateralPledge Agreements;
(vif) The Borrower's Lien and Possession Affidavit;
(vii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ix) A certificate certificates of the Secretary or an Assistant Secretary of each of the Borrower Credit Parties (or, in the case of any Foreign Subsidiary, a comparable company officer) certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(g) certified copies of the certificate or articles of incorporation of each Credit Party (or comparable organizational document of each Foreign Subsidiary) certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State (or comparable office or registry for each Foreign Subsidiary) of the jurisdiction of incorporation or organization of such Credit Party;
(h) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(i) an internally prepared draft of Intermet's consolidated financial statements for the fiscal period ending June 30, 1996, certified by the chief financial officer of Intermet;
(j) notice to, and acknowledgment by, the exiting lenders pursuant to the Prior Credit Agreement to accept payment in full of all obligations outstanding under the Prior Credit Agreement;
(k) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, Foreign Plans, and other compensation and employee benefit plans;
(l) certificates, reports, environmental audits and investigations, and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(m) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in order to resolutions satisfy the Lenders as to the absence of its Board any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(n) a summary, set forth in format and detail reasonably acceptable to the Agent, of Directors authorizing the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(o) the favorable opinion of Dickinson, Wright, Moon, Van Dusen & Freexxx, xxunsel to the Credit Parties, substantially in the form of Exhibit J-1 addressed to the Agent, the Co-Agents and each of the Lenders and the favorable opinion of Kilpxxxxxx & Xody, special Georgia counsel to the Credit Parties, substantially in the form of Exhibit J-2 addressed to the Agent, the Co-Agents and each of the Lenders;
(p) consent from Prudential to the execution and delivery of the Loan Documents this Agreement in form and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officer(s);
(x) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof;
(xii) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as substance satisfactory to the due qualification Agent and good standing of the Borrower as a foreign corporation in such states;
(xiv) An opinion addressed to the Lender from Bingxxx Xxxx XXX, counsel to the Borrower;
(xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties and such other matters as the Lender may reasonably requestRequired Lenders; and
(xviq) Such all corporate proceedings and all other documentslegal matters in connection with the authorization, instrumentslegality, opinions validity and certificates and completion enforceability of such other matters, as the Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation Credit Documents shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages reasonably satisfactory in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings form and recordings against the Collateral shall have been completed and the Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documents.
(d) The Borrower shall have paid substance to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing DateRequired Lenders.
Appears in 1 contract
Samples: Credit Agreement (Intermet Corp)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of the Lender following is a condition precedent to make Agent and Lenders making the initial Loans and of providing the Issuing Bank to issue any Letter initial Letters of Credit on or after the date hereof is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datehereunder:
(a) The Lender all requisite corporate action and proceedings in connection with the transactions contemplated by this Agreement and the other Financing Agreements shall have received the following agreements, documents, certificates and opinions be satisfactory in form and substance reasonably to Agent, and Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Agent may have requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authorities;
(b) all financial information, projections, budgets, business plans, cash flows and such other information as Agent shall request from time to time, including (i) projected quarterly balance sheets, income statements, statements of cash flows and Excess Availability of Borrowers and Guarantors for the period commencing July 1, 2007 through the end of the 2008 fiscal year of Borrowers, (ii) projected annual balance sheets, income statements, statements of cash flows and Excess Availability of Borrowers and Guarantors for the period commencing July 1, 2007 through the end of the 2010 fiscal year of Borrowers (and in addition thereto, further projected income statements of Borrowers and Guarantors commencing July 1, 2007 through the end of the 2011 and 2012 fiscal years of Borrowers), 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 Agent, and an opening pro forma balance sheet for Borrowers and Guarantors in form and substance satisfactory to Agent, (iii) any updates or modifications to the Lender projected financial statements of Borrowers and Guarantors described hereinabove heretofore received by Agent, in each case in form and substance satisfactory to Agent, and (iv) an aging of Accounts as of August 31, 2007, perpetual Inventory records as of August 31, 2007 and/or rollforwards of Accounts and Inventory through the Closing Date, together with supporting documentation, each in form and substance satisfactory to Agent;
(c) no material adverse change shall have occurred in the assets, business or financial condition of Borrowers and their Subsidiaries, taken as a 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 other Financing Agreements to which it is a party or of Agent to enforce the Obligations or realize upon the Collateral;
(d) Agent shall have completed its business and legal due diligence, with results satisfactory to Agent, including (i) receipt and review of third party appraisals, in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent on which Agent and Lenders are permitted to rely, (ii) field examinations of the business and Collateral of Borrowers in accordance with Agent's customary procedures and practices and as otherwise required by the nature and circumstances of the businesses of Borrowers, and (iii) to the extent not delivered in connection with the Existing Loan Agreement, environmental assessments of the Real Property of Borrowers conducted by an independent environmental engineering firm acceptable to Agent and in form, scope and methodology acceptable to Agent, and Agent shall be satisfied with the corporate and capital structure and management of Borrowers and with all legal, tax, accounting and other matters relating to Borrowers;
(e) Agent shall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third Persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) the 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 contemplated hereunder;
(g) 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);
(h) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest and lien in all of the Collateral;
(i) 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;
(j) Agent shall have received, in form and substance satisfactory to Agent, an amendment to the Factor Intercreditor Agreement duly executed and delivered by the parties thereto:
(i) This Agreement;
(iik) The Revolving Credit NoteAgent shall have received, in form and substance satisfactory to Agent, a Uniform Commercial Code 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 Borrowers and their domestic Subsidiaries, and Agent shall have received confirmation of the filing of all such financing statements;
(iiil) The Equipment Loan NoteAgent shall have received the Solvency Certificate and all financial statements attached as exhibits thereto;
(ivm) Amendments Agent shall have received, at least five (5) Business Days prior to the Arizona Mortgage Closing Date, a certificate reasonably satisfactory to the Agent, for benefit of itself and the Florida MortgageLenders, provided by Borrowers that sets forth information required by the USA PATRIOT Act including, without limitation, the identity of the Obligors, the name and corresponding title insurance endorsementsaddress of the Obligors and other information that will allow the Administrative Agent or any Lender, as applicable, to identify the Obligors in accordance with the USA PATRIOT Act;
(vn) Amendments 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 UCC financing statements covering the CollateralAgent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(vio) The Borrower's Lien Agent shall have received, in form and Possession Affidavit;
(vii) Certificates substance satisfactory to Agent, such opinion letters of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ix) A certificate of the Secretary or an Assistant Secretary of the Borrower counsel to Borrowers and Guarantors with respect to resolutions of its Board of Directors authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officer(s);
(x) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof;
(xii) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states;
(xiv) An opinion addressed to the Lender from Bingxxx Xxxx XXX, counsel to the Borrower;
(xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties Financing Agreements and such other matters as the Lender Agent may reasonably request; and
(xvip) Such the other documentsFinancing Agreements and all instruments and documents hereunder, instrumentsincluding amendments to the Mortgages, opinions and certificates and completion of such other matters, as the Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings and recordings against the Collateral shall have been completed duly executed and the Lender's liens on the Collateral shall have been perfecteddelivered to Agent, as contemplated by the Security Documentsin form and substance satisfactory to Agent.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lender to make the initial Loans and of the Issuing Bank to issue any Letter of Credit on or after the date hereof is subject to the satisfaction of the following conditions precedent on or prior to On the Closing Date:
, all obligations of Borrower hereunder incurred prior to such date (a) The Lender including, without limitation, Borrower's obligations to reimburse the reasonable fees and expenses of counsel to the Agent and any fees and expenses payable to the Agent, the Co-Agents, the Lenders and their Affiliates as previously agreed with Borrower), shall have been paid in full, and the Agent shall have received the following agreementsfollowing, documents, certificates and opinions in form and substance reasonably satisfactory in all respects to the Lender and duly executed and delivered by the parties theretoAgent:
(ia) This the duly executed counterparts of this Agreement;
(iib) The the duly executed Revolving Credit NoteNotes evidencing the Commitments and the duly executed Bid Facility Notes and the duly executed Swing Line Note evidencing the Swing Line Subcommitment;
(iiic) The Equipment Loan Notethe duly executed Guaranty Agreement;
(ivd) Amendments to certificate of Borrower in substantially the Arizona Mortgage form of Exhibit I attached hereto and the Florida Mortgage, and corresponding title insurance endorsementsappropriately completed;
(ve) Amendments to UCC financing statements covering certificates of the CollateralSecretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(vif) The Borrower's Lien and Possession Affidavit;
(vii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ix) A certificate certificates of the Secretary or an Assistant Secretary of the Borrower with respect to resolutions of its Board of Directors authorizing the execution and delivery each of the Loan Documents Credit Parties certifying (i) the name, title and identifying true signature of each officer of such entities executing the officer(s) authorized to execute, deliver and take all other actions required under this AgreementCredit Documents, and providing specimen signatures (ii) the bylaws or comparable governing documents of such officer(s)entities;
(xg) The Certificate of Incorporation certified copies of the Borrower and all amendments and supplements thereto, as filed in the office certificate or articles of incorporation of each Credit Party certified by the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by or the Secretary or an Assistant Secretary of the Borrower such Credit Party, together with certificates of good standing or existence, as being a true and correct copy thereof;
(xii) A certificate of may be available from the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing or organization of the Borrower in such stateCredit Party;
(xiiih) A certificate copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Secretaries Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of State of each state the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in which full force and effect and all applicable waiting periods shall have expired;
(i) certificates, reports and other information as the Borrower is doing business Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the due qualification absence of any material liabilities or obligations arising from (i) litigation (including without limitation, products liability and good standing patent infringement claims) pending or threatened against the Consolidated Companies, (ii) matters relating to employees of the Borrower as a foreign corporation in such statesConsolidated Companies, including employee relations, collective bargaining agreements, plans and other compensation and employee benefit plans, and (iii) environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(xivj) An the favorable opinion of Smitx, Xxmbxxxx & Xussxxx, xxunsel to the Credit Parties, substantially in the form of Exhibit J addressed to the Lender from Bingxxx Xxxx XXXAgent, counsel to the Borrower;
(xv) A certificate Co-Agents and each of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties and such other matters as the Lender may reasonably requestLenders; and
(xvik) Such all corporate proceedings and all other documentslegal matters in connection with the authorization, instrumentslegality, opinions validity and certificates and completion enforceability of such other matters, as the Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation Credit Documents shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages reasonably satisfactory in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings form and recordings against the Collateral shall have been completed and the Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documents.
(d) The Borrower shall have paid substance to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing DateRequired Lenders.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of the Lender following is a condition precedent to make Agent and Lenders making the initial Loans and of providing the Issuing Bank to issue any Letter initial Letters of Credit on or after the date hereof is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datehereunder:
(a) The Lender all requisite corporate action and proceedings in connection with the transactions contemplated by this Agreement and the other Financing Agreements shall have received the following agreements, documents, certificates and opinions be satisfactory in form and substance reasonably satisfactory to the Lender Agent, and duly executed Agent shall have received all information and delivered copies of all documents, including records of requisite corporate action and proceedings which Agent may have requested in connection therewith, such documents where requested by the parties thereto:Agent or its counsel to be certified by appropriate corporate officers or Governmental Authorities;
(b) all financial information, projections, budgets, business plans, cash flows and such other information as Agent shall request from time to time, in each case in form and substance acceptable to Agent, including (i) This Agreementprojected quarterly balance sheets, income statements and Excess Availability of Borrowers and Guarantors for the period through the last day of Borrowers’ 2012 fiscal year, (ii) projected annual balance sheets, income statements and Excess Availability of Borrowers and Guarantors for the period through the last day of Borrowers’ 2016 fiscal year, and (iii) any updates or modifications to the projected financial statements of Borrowers and Guarantors described hereinabove heretofore received by Agent, together with supporting documentation;
(iic) The Revolving Credit Note;
(iii) The Equipment Loan Note;
(iv) Amendments no material adverse change shall have occurred in the assets, business or financial condition of Borrowers and their Subsidiaries, taken as a 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 Arizona Mortgage and other Financing Agreements to which it is a party or of Agent to enforce the Florida Mortgage, and corresponding title insurance endorsements;
(v) Amendments to UCC financing statements covering Obligations or realize upon the Collateral;
(vid) The Borrower's Lien Agent shall have completed its business and Possession Affidavitlegal due diligence, with results satisfactory to Agent, including (i) receipt and review of third party appraisals, in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent on which Agent and Lenders are permitted to rely, (ii) field examinations of the business and Collateral of Borrowers in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the businesses of Borrowers, and (iii) environmental assessments of the Real Property of Borrowers conducted by an independent environmental engineering firm acceptable to Agent and in form, scope and methodology acceptable to Agent;
(viie) Certificates Agent shall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third Persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and Liens upon the Collateral or to effectuate the provisions or purposes of insurance or insurance binders evidencing compliance with Section 5.3(b) hereofthis Agreement and the other Financing Agreements, including Collateral Access Agreements by owners and lessors of leased premises of each Borrower and by warehouses at which Collateral is located;
(viiif) Notice of Borrowing or Conversion signed the Excess Availability as determined by a Responsible Officer Agent, as of the Closing Date;
(ix) A certificate of the Secretary or an Assistant Secretary of the Borrower with respect to resolutions of its Board of Directors authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to executedate hereof, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officer(s);
(x) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof;
(xii) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as shall be not less than $10,000,000 after giving effect to the due qualification initial Loans made or to be made and good standing Letters of Credit issued or to be issued in connection with the Borrower as a foreign corporation in such states;
(xiv) An opinion addressed to the Lender from Bingxxx Xxxx XXX, counsel to the Borrower;
(xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties and such other matters as the Lender may reasonably request; and
(xvi) Such other documents, instruments, opinions and certificates and completion of such other matters, as the Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the initial transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documents.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.hereunder;
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation At the time of the Lender to make making of the initial Loans hereunder on the Closing Date and the issuance of the Issuing Bank to issue any initial Letter of Credit on or after the date hereof is subject hereunder, all obligations of Parent and Acquisition Sub to the satisfaction of the following conditions precedent on or Agent and Lenders incurred prior to the Closing Date:
initial Loans (a) The Lender including, without limitation, Borrower's obligations to reimburse fees and expenses payable to the Agent as previously agreed with Borrower), shall have been paid in full, and the Agent shall have received the following agreementsfollowing, documents, certificates and opinions in form and substance reasonably satisfactory in all respects to the Lender and Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the Revolving Loan Commitments and delivered the duly executed Swing Line Note evidencing the Swing Line Subcommitment;
(c) the duly executed Guaranty Agreements and Contribution Agreement;
(d) the duly executed Borrower Security Agreement and appropriate UCC financing statements relating thereto;
(e) the duly executed Trademark Security Agreement;
(f) accompanying Uniform Commercial Code financing statements relating thereto;
(g) the duly executed Pledge Agreements accompanied, to the extent relevant under applicable law, by (i) all stock certificates representing the Pledged Stock, (ii) stock powers for those shares duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the parties thereto:Agent in order to assure the perfection of a first priority lien in such Pledged Stock in favor of the Agent for the benefit of the Lenders;
(h) a duly executed certificate of a senior officer of the Parent and the Acquisition Sub certifying that each of the Credit Parties, after giving effect to the transactions contemplated by this Agreement, will be solvent, in form and substance satisfactory to the Agent;
(i) This Agreementduly executed Mortgages, together with appropriate Uniform Commercial Code fixture financing statements;
(iij) The Revolving a duly executed closing certificate of the Borrower and the Parent in substantially the form of Exhibit G attached hereto and appropriately completed; ---------
(k) certificates of the Secretaries or Assistant Secretaries of the Credit NoteParties attaching and certifying copies of the resolutions of the board of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents by the Credit Parties party thereto;
(iiil) The Equipment Loan Notecertificates of the Secretaries or an Assistant Secretary of the Credit Parties certifying (i) the name, title and true signature of each officer of the Credit Parties executing the Credit Documents, and (ii) the bylaws of the Credit Parties;
(ivm) Amendments certified copies of the articles or certificate of incorporation or charters of the Credit Parties certified by the Secretaries of State and by the Secretaries or Assistant Secretaries of the Credit Parties, together with certificates of good standing or existence, as may be available from the Secretaries of State of the jurisdiction of incorporation or organization of the Credit Parties and each other jurisdiction where the Credit Parties ownership of property or the conduct of its business require it to be qualified, except where a failure to be so qualified would not have a Materially Adverse Effect;
(n) acknowledgments from CT Corporation System or National Registered Agents, Inc. as to its appointment as agent for service of process for the Credit Parties;
(o) the favorable opinion of (i) Long Xxxxxxxx & Xxxxxx LLP, counsel to the Arizona Mortgage Credit Parties, substantially in the form of Exhibit H-1, addressed to the Agent ----------- and each of the Lenders, and (ii) Xxxxxx & Xxxxxx, special Tennessee counsel to the Credit Parties, substantially in the form of Exhibit H-2, addressed to the ----------- Agent and each of the Lenders;
(p) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the Florida Mortgageother documents to be executed and delivered hereunder, and corresponding title such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(q) reports from the Uniform Commercial Code records of each of the jurisdictions listed on Schedule 4.01 hereto, in each case showing no ------------- outstanding liens or security interests granted by any Credit Party other than (x) Permitted Liens and (y) Liens in favor of the Agent;
(r) copies of indentures, credit agreements, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 7.01, in any single case in an amount not less than ------------- $1,000,000;
(s) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(t) a summary, set forth in format and detail acceptable to the Agent, of the types and amounts of insurance endorsements(property and liability) maintained by the Consolidated Companies accompanied by the insurance certificates naming the Agent as loss payee and additional insured as may be required by the terms of the Security Documents;
(u) a copy of the Merger Agreement, accompanied by the certificate of a senior officer of the Parent as to the consummation of the Acquisition and the other transactions contemplated by the Merger Agreement and certain other matters, together with copies of the documents required to be delivered pursuant to the Merger Agreement, together with the certificate of a senior officer of the Parent as to the accuracy thereof;
(v) Amendments evidence satisfactory to UCC financing statements covering the CollateralAgent that all conditions precedent to the consummation of the Merger have been fulfilled and that the Merger will take place concurrently with or prior to the initial Advance hereunder;
(viw) The Borrower's Lien a copy of the Senior Note Indenture, in form and Possession Affidavitsubstance satisfactory to the Agent, accompanied by a certificate of a senior officer of the Acquisition Sub stating that all conditions precedent to the issuance of the Senior Notes have been satisfied and that the Senior Notes will be issued concurrently with or prior to the initial Advance hereunder, resulting in the receipt of gross proceeds thereof in an amount of not less than $100,000,000;
(viix) Certificates evidence satisfactory to the Agent of insurance or insurance binders evidencing compliance with Section 5.3(ban equity investment in Borrower made by Parent (funded by private equity contributions to Parent) hereofin an amount of not less than $35,000,000;
(viiiy) Notice a duly executed Solvency Certificate of Borrowing or Conversion signed by the Borrower;
(z) a Responsible Officer as duly executed Closing Memorandum;
(aa) written direction from the Acquisition Sub to the Agent regarding the disbursement of the proceeds of the initial Advances to be made on the Closing Date;
(ixbb) A certificate evidence satisfactory to the Agent of the Secretary or an Assistant Secretary repayment of all other Indebtedness of the Borrower with respect to resolutions Target other than Indebtedness permitted by the terms of its Board of Directors authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures the release of such officer(sall Liens securing the same (including without limitation, the Existing Credit Agreement);
; and (xcc) The Certificate of Incorporation evidence assuring the Agent and the Lenders that all corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Borrower Credit Documents and all amendments the Transaction are in form and supplements thereto, as filed substance satisfactory to the Lenders in the office exercise of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof;
(xii) A certificate of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states;
(xiv) An opinion addressed to the Lender from Bingxxx Xxxx XXX, counsel to the Borrower;
(xv) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties and such other matters as the Lender may reasonably request; and
(xvi) Such other documents, instruments, opinions and certificates and completion of such other matters, as the Lender may reasonably deem necessary or appropriatetheir reasonable credit judgment.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documents.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Krystal Company)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation At the time of the Lender to make making of the initial Loans hereunder and issuance or deemed issuance of the Issuing Bank to issue any Letter Letters of Credit on or after the date hereof is subject to the satisfaction Closing Date, all obligations of the following conditions precedent on or Borrowers hereunder incurred prior to the Closing Date:
initial Loans (aincluding, without limitation, any Borrower's obligations to reimburse the fees and expenses of counsel to the Agents and any fees and expenses payable to the Agents and the Lenders as previously agreed with any Borrower) The Lender for which the Agent has delivered to any Borrower an invoice not less than five (5) Business Day prior to the date of such initial Loans, shall have been paid in full, and the Agents shall have received the following agreementsfollowing, documents, certificates and opinions in form and substance reasonably satisfactory in all respects to the Lender and Agents:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the Revolving Loan Commitments, the duly executed Term Notes and delivered the duly executed Swing Line Note;
(c) the duly executed Guaranty Agreements and Contribution Agreement;
(d) the duly executed Security Agreements and accompanying Uniform Commercial Code financing statements relating thereto;
(e) the duly executed Trademark Security Agreements and Patent Security Agreement;
(f) the duly executed Pledge Agreements accompanied, to the extent relevant under applicable law, by (i) all stock certificates representing the Pledged Stock, (ii) stock powers for those shares duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the parties Collateral Agent in order to assure the perfection of a first priority lien in such Pledged Stock in favor of the Collateral Agent for the benefit of the Lenders;
(g) a duly executed certificate of a senior officer of the Parent certifying that each of the Credit Parties, after giving effect to the transactions contemplated by this Agreement, will be Solvent, in form and substance satisfactory to the Agent;
(h) the duly executed Bond Pledge Agreement accompanied, to the extent relevant under applicable law, by (i) the original Ad Valorem Bonds, (ii) bond powers for the Ad Valorem Bonds duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto:, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Ad Valorem Bonds in favor of the Collateral Agent for the benefit of the Lenders;
(i) This Agreementduly executed Mortgages with respect to all Real Property, together with appropriate Uniform Commercial Code financing statements;
(iij) The Revolving Credit Notetitle insurance commitments with respect to the Real Property subject to the Mortgages in an amount and in a form reasonably satisfactory to the Collateral Agent;
(iiik) The Equipment Loan Notecopies of the as-built surveys of the Real Property subject to the Mortgages, certified to the Collateral Agent, in a form reasonably satisfactory to the Collateral Agent, accompanied by surveyor's certificates in a form reasonably satisfactory to the Collateral Agent;
(ivl) Amendments copies of the Phase I and Phase II environmental reports obtained by the Parent with respect to the Arizona Mortgage Real Property owned by Alamac disclosing only such matters as may be reasonably acceptable to the Agents and the Florida Mortgage, and corresponding title insurance endorsementsLenders;
(vm) Amendments to UCC financing statements covering a duly executed closing certificate of the CollateralBorrowers in substantially the form of Exhibit G attached hereto and appropriately completed;
(vin) The Borrower's Lien certificates of the Secretary or Assistant Secretary of each of the Credit Parties (or, in the case of any Credit Party which is a partnership, a comparable officer of its general partner) attaching and Possession Affidavitcertifying copies of the resolutions of the boards of directors (or, in the case of any partnership, the comparable governing body of such entity) of the Credit Parties, authorizing as applicable (i) the execution, delivery and performance of the Credit Documents, and (ii) the granting of the pledges and security interests granted pursuant to the Security Documents;
(viio) Certificates of insurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(viii) Notice of Borrowing or Conversion signed by a Responsible Officer as of the Closing Date;
(ix) A certificate certificates of the Secretary or an Assistant Secretary of each of the Borrower Credit Parties (or, in the case of any partnership, a comparable officer of its general partner) certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(p) certified copies of the certificate or articles of incorporation of each Credit Party (or comparable organizational document of each Credit Party which is a partnership), together with certificates of good standing or existence, as may be available from the Secretary of State (or comparable office or registry for each Credit Party which is a partnership) of the jurisdiction of incorporation or organization of such Credit Party;
(q) examination reports from the Uniform Commercial Code records of each of the jurisdictions listed on Schedule 5.01 hereto, in each case showing no outstanding liens or security interests granted by any Credit Party other than (x) Liens permitted by Section 8.02, and (y) Liens in favor of the Collateral Agent;
(r) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder and the consummation of the Transaction, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(s) certified copies of the Intercompany Loan Documents;
(t) acknowledgments from National Registered Agents, Inc. as to its appointment as agent for service of process for the various Credit Parties;
(u) certified copies of indentures, credit agreements, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.01(b), in any single case in an amount not less than $1,000,000;
(v) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(w) certificates, reports, environmental audits and investigations, and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect to resolutions of its Board of Directors authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officer(s)thereto;
(x) The Certificate certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of Incorporation of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereofConsolidated Companies;
(xiy) The By-laws a summary, set forth in format and detail acceptable to the Agents, of the Borrower types and all amendments amounts of insurance (property and supplements thereto, certified liability) maintained by the Secretary or an Assistant Secretary Consolidated Companies accompanied by the insurance certificates naming the Collateral Agent as loss payee and additional insured as may be required by the terms of the Borrower as being a true and correct copy thereofSecurity Documents;
(xiiz) A certificate the favorable opinion of the Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(xiii) A certificate of the Secretaries of State of each state in which the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states;
(xiv) An opinion addressed to the Lender from Bingxxx Xxxx Bass, Berrx & Xims XXX, counsel to the Borrower;
Credit Parties, substantially in the form of Exhibit H-1, and (xvii) A certificate Currothers & Roth, X.A. special North Carolina counsel to the Agents and the Lenders, substantially in the form of Exhibit H-2, in each case addressed to the Agents and each of the chief financial officer of the Borrower as to the solvency of the BorrowerLenders, the accuracy of the Borrower's representations and warranties and covering such other matters as the either Agent or any Lender may reasonably request;
(aa) a copy of the Alamac Acquisition Agreement, accompanied by the certificate of a senior officer of the Parent as to the consummation of the Alamac Acquisition and the other transactions contemplated by the Alamac Acquisition Agreement and certain other matters, together with copies of the documents required to be delivered pursuant to the Alamac Acquisition Agreement, together with the certificate of a senior officer of the Parent as to the accuracy thereof;
(bb) a duly executed Assignment of Purchase Agreement, acknowledged by the Sellers;
(cc) a letter from Weil Gotsxxxx & Xangxx, xxunsel to the Seller, authorizing the Agents and the Lenders to rely upon the opinions delivered by such law firm to the Seller in connection with the Alamac Acquisition;
(dd) a copy of the Senior Subordinated Note Indenture, accompanied by a certificate of a senior officer of the Parent as to the consummation of the offering of the Senior Subordinated Notes and the receipt of gross proceeds thereof in an amount of not less than $125,000,000;
(ee) a duly executed initial Borrowing Base Certificate;
(ff) written direction from the Borrowers to the Agent regarding the disbursement of the proceeds of the Term Loans and the initial Revolving Loans to be made on the Closing Date;
(gg) evidence satisfactory to the Agent of the repayment of all other Indebtedness of the Consolidated Companies (including Alamac Holdings and its Subsidiaries) other than Indebtedness permitted by the terms of this Agreement;
(hh) the Letter of Credit Agreement Amendment; and
(xviii) Such such other documents, instrumentsopinions, opinions and certificates and completion of such other matters, agreements as the Lender Agents may reasonably deem necessary or appropriaterequest.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documents.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Dyersburg Corp)
