Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Agent and Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent: (a) this Agreement or counterparts hereof shall have been duly executed by, and delivered to, Borrowers, Guarantors, Agent and Lenders; and Agent shall have received such documents, instruments, agreements and legal opinions as Agent shall reasonably request in connection with the transactions contemplated by this Agreement and the other Financing Agreement, including all those listed in the Closing Checklist attached hereto as Annex 1, each in form and substance reasonably satisfactory to Agent; (b) Agent shall have received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by the Existing Lenders of their respective financing arrangements with Borrowers and Guarantors; (c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to 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 to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation or formation); (d) a certificate signed by the chief executive officer, chief financial officer, president or vice president of each Borrower, certifying that since February 2, 2008 no event has occurred, that alone or together with other events, could reasonably be expected to have a Material Adverse Effect; (e) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner reasonably 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 reasonably satisfactory to Agent, not more than seven (7) Business Days prior to the date hereof or such earlier date as Agent may agree; (f) Agent shall have received, in form and substance reasonably satisfactory to Agent, (i) an opening pro-forma balance sheet of Parent and its Subsidiaries (on a consolidated basis), reflecting the transactions contemplated hereby and (ii) the Disclosure Letter attaching the projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a monthly basis for the period through the end of the 2009 Fiscal Year and thereafter, on an annual basis for each Fiscal Year through the end of the 2012 Fiscal Year, in each case with the results and assumptions set forth in all of such projections in form and substance reasonably satisfactory to Agent; (g) Agent shall have received a certificate signed by the chief executive officer or chief financial officer of Administrative Borrower, in form and substance satisfactory to Agent, attaching 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, without limitation, Collateral Access Agreements (other than from the lessors of retail store locations) and Credit Card Acknowledgments; (h) Adjusted Excess Availability as determined by Agent, as of the Closing Date, shall be not less than $12,000,000 after giving effect to the Plan of Reorganization, the initial Loans made or to be made, the Letters of Credit issued or to be issued in connection with the initial transactions hereunder, the incurrence of the Specified Subordinated Indebtedness, and the payment of all trade payables and expenses and liabilities of Borrowers in the ordinary course of business; (i) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral; (j) Agent shall have received and reviewed lien search results for each Borrower and Guarantor in such jurisdictions as Agent shall request, which search results shall be in form and substance satisfactory to Agent; (k) Agent shall have received environmental audits of the Baldwyn Real Property conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology reasonably satisfactory to Agent, the results of which shall be satisfactory to Agent; (l) Agent shall have received, in form and substance reasonably satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) insuring the priority, amount and sufficiency of the Closing Date Mortgaged Property, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests; (m) Agent shall have received originals of the shares of the stock certificates (if any) representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto; (n) Agent shall have received a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the date hereof as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers; (o) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee; (p) Agent shall have received a written appraisal as to the Inventory of Borrowers and Guarantors and the Baldwyn Real Property, in each case by an appraiser acceptable to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; (q) no material pending or threatened, litigation, proceeding, bankruptcy (other than the Reorganization Cases) or insolvency, injunction, order or claims with respect to Borrowers and Guarantors shall exist; (r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing; (s) Agent shall have received, in form and substance reasonably satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the Financing Agreements and such other matters as Agent may request; (t) Agent shall have received the audited financial statements of Borrowers and their Subsidiaries for the Fiscal Year ended February 2, 2008, and such financial statements shall be in form and substance reasonably satisfactory to Agent; (u) Agent shall have received satisfactory background and reference checks on (i) each Borrower and each Guarantor and (ii) the chief executive officer, chief financial officer, chief operating officer and each other officer and director of each Borrower and each Guarantor, in each case, as determined by the Agent, and the Borrowers and the Guarantors shall have delivered all such documents and instruments necessary to effectuate such background and reference checks; (v) Agent shall have received evidence satisfactory to Agent that Borrowers shall have received the Specified Subordinated Indebtedness, together with copies, certified by the chief executive officer or chief financial officer of the Administrative Borrower of all Specified Subordinated Indebtedness Documents. The terms of the Specified Subordinated Indebtedness and the Specified Subordinated Indebtedness Documents shall be reasonably acceptable to Agent, including, without limitation, with respect to payment subordination and blockage, remedy standstill periods, cross-default provisions and agreement not to contest the Obligations and the liens granted to Agent under the Financing Agreements, and the Obligations arising under the Financing Agreements and the liens granted to Agent under the Financing Agreements shall be senior and first in priority, as applicable, in all respects; (w) all motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this Agreement and the Plan of Reorganization and the approval hereof and thereof shall be satisfactory in form and substance to Agent. All service and notice requirements in connection this Agreement and the Plan of Reorganization shall have been timely complied with and such requirements have been fulfilled in accordance with all applicable laws and rules. A Final Order confirming the Plan of Reorganization in form and substance acceptable to Agent (the “Confirmation Order”) shall have been entered in the Reorganization Cases, which order shall not have been subject to injunction, stayed, modified, appealed, reversed or otherwise affected; (x) Borrowers’ Plan of Reorganization, as confirmed, shall be in form and substance satisfactory to Agent, including, without limitation, providing for the discharge of all Indebtedness and other claims against the Borrowers existing as of the Petition Date, the termination of all commitments relating thereto, and the termination, release and discharge of all liens or security interests granted thereunder (other than Permitted Liens), in each case on terms satisfactory to the Agent. The Bankruptcy Court shall have approved any amendments or modifications to the Plan of Reorganization and entered any and all related orders requested or approved by Agent in connection therewith, and no other amendments or modifications thereto shall have occurred except as shall have been consented to by Agent or the Required Lenders, as appropriate. All conditions precedent to the Effective Date (as defined in the Plan of Reorganization) of the Plan of Reorganization shall have been met (or the Agent shall have granted its prior written consent to a waiver thereof) and the Effective Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial Loans under this Agreement to be made on the Closing Date. The Confirmation Order shall be a Final Order and shall not have been reversed, modified, amended, subject to injunction, or stayed, shall be in full force and effect, and, unless otherwise agreed by Agent, all appeal periods relating to the Confirmation Order shall have expired, and, unless otherwise agreed by Agent, no appeals from the Confirmation Order shall be outstanding. Except with the prior written consent of the Agent, the Bankruptcy Court’s retention of jurisdiction under the Final Order confirming the Plan of Reorganization shall not extend to nor govern the enforcement of the Financing Agreements from and after the Closing Date, or any rights or remedies relating thereto; (y) Agent shall have completed its legal due diligence with results reasonably satisfactory to Agent (including without limitation Agent’s reasonable satisfactory with any previously undisclosed issues of a business nature that arise in connection with the legal due diligence) for which Agent previously did not have actual knowledge of such issues prior to the date the Commitment Letter dated as of April 8, 2008 having been executed and which such issues affect any Borrower or any of its Subsidiaries or the Transaction that in the Agent’s reasonable judgment is inconsistent in a material and adverse manner with any such information disclosed to the Agent prior to the date of such Commitment Letter. Without limiting the generality of the foregoing, the corporate structure of the Borrowers and their subsidiaries, documentation evidencing Indebtedness of the Borrowers and their subsidiaries, material contracts and Governing Documents of the Borrowers and their subsidiaries shall be reasonably acceptable to the Agent; and (z) Agent shall have received an officer’s certificate duly executed by chief executive officer, president, vice president or treasurer of each of the Borrowers and Guarantors certifying and attesting that, as of the Closing Date, (i) no appeal of the Confirmation Order has been filed; (ii) no request for a stay of the Confirmation Order pending appeal has been made; and (iii) the Confirmation Order has not been stayed in any manner. (aa) Agent shall have received such other documents and instruments reasonably as Agent or its counsel may require or request.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hancock Fabrics Inc), Loan and Security Agreement (Hancock Fabrics Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Agent and Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) this Agreement or counterparts hereof shall have been duly executed by, and delivered to, Borrowers, Guarantors, Agent and Lenders; and Agent shall have received such documents, instruments, agreements and legal opinions as Agent shall reasonably request in connection with the transactions contemplated by this Agreement and the other Financing Agreement, including all those listed in the Closing Checklist attached hereto as Annex 1, each in form and substance reasonably satisfactory to Agent;
(b) Agent shall have received, in form and substance reasonably satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by the Existing Lenders of their respective financing arrangements with Borrowers and GuarantorsGuarantors and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and Guarantor securing such financing arrangements, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements relating to such interests previously filed by it or any of them or their predecessors, as secured party and any Borrower or Guarantor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds securing such financing arrangements by any Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(cb) all requisite corporate entity action and proceedings 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 all information and copies of all documents, including records of requisite corporate entity action and proceedings which Agent may have requested in connection therewith, such documents where reasonably requested by Agent or its counsel to be certified by appropriate corporate entity officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation incorporation);
(c) no material adverse change shall have occurred in the business, properties, results of operations or formationfinancial condition of Borrowers and Guarantors (taken as a whole), since the date of Agent’s latest field examination (not including for this purpose the field review referred to in clause (d) below) or since December 31, 2008 (the date of the most recent audited financial statements);
(d) a certificate signed by the chief executive officer, chief financial officer, president or vice president of each Borrower, certifying that since February 2, 2008 no event has occurred, that alone or together with other events, could reasonably be expected to have a Material Adverse Effect;
(e) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner reasonably 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 reasonably satisfactory to Agent, not more than seven (7) Business Days prior to the date hereof or such earlier date as Agent may agree;
(f) Agent shall have received, in form and substance reasonably satisfactory to Agent, (i) an opening pro-forma balance sheet of Parent and its Subsidiaries (on a consolidated basis), reflecting the transactions contemplated hereby and (ii) the Disclosure Letter attaching the projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a monthly basis for the period through the end of the 2009 Fiscal Year and thereafter, on an annual basis for each Fiscal Year through the end of the 2012 Fiscal Year, in each case with the results and assumptions set forth in all of such projections in form and substance reasonably satisfactory to Agent;
(g) Agent shall have received a certificate signed by the chief executive officer or chief financial officer of Administrative Borrower, in form and substance satisfactory to Agent, attaching 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 Liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements (other than from the lessors of retail store locations) and Credit Card AcknowledgmentsAgreements;
(he) Adjusted the Excess Availability as determined by Agent, as of the Closing Datedate hereof, shall be not less than $12,000,000 40,000,000 after giving effect to the Plan of Reorganization, the initial Loans made or to be made, the made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder, the incurrence of the Specified Subordinated Indebtedness, and the payment of all trade payables and expenses and liabilities of Borrowers in the ordinary course of business;
(if) 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, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Agent shall be the bank’s customer with respect to such deposit account as Agent may specify); provided, that, with respect to Deposit Account Control Agreements from depository banks where accounts are maintained as of the closing date of the Credit Facility, the failure to deliver such Deposit Account Control Agreements, other than as to the principal concentration accounts, shall not be a condition of closing so long as Borrowers shall have used commercially reasonable efforts to obtain such agreements prior to closing and to the extent not delivered prior to the closing date of the Credit Facility, Agent shall receive the same within thirty (30) days after the date of the closing of the Credit Facility (or such later date as Agent may thereafter agree).
(g) 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 CollateralFirst Priority Collateral (and a perfected security interest in all other Collateral having the priority for such Collateral required hereunder) in each case subject only to Permitted Liens permitted to have priority hereunder;
(jh) Agent shall have received and reviewed lien Lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in such jurisdictions as Agent shall requestwhich assets of Borrowers and Guarantors are located, which search results shall be in form and substance satisfactory to Agent;
(k) Agent shall have received environmental audits of the Baldwyn Real Property conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology reasonably satisfactory to Agent, the results of which shall be satisfactory to Agent;
(l) Agent shall have received, in form and substance reasonably satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) insuring the priority, amount and sufficiency of the Closing Date Mortgaged Property, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests;
(m) Agent shall have received originals of the shares of the stock certificates (if any) representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(n) Agent shall have received a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the date hereof as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(o) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(pj) Agent shall have received a written appraisal as (i) an opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP, (ii) an opinion of Xxxxxxx X. Xxxx, Xx., General Counsel of FGI, and (iii) an opinion from Xxxxxx, Xxxxxx & Gold, Connecticut local counsel to the Inventory of Borrowers FGI, each in form and Guarantors and the Baldwyn Real Property, in each case by an appraiser acceptable substance satisfactory to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(qk) no material pending or threatened, litigation, proceeding, bankruptcy (other than Agent shall have received the Reorganization Cases) or insolvency, injunction, order or claims with respect to Borrowers Solvency Certificate and Guarantors shall existall financial statements attached thereto as exhibits;
(r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing;
(sl) Agent shall have received, in form and substance reasonably satisfactory to Agent, such opinion letters (i) copies of counsel to Borrowers documentation for the Senior Notes, which documentation shall include the Senior Notes Indenture and Guarantors with respect all exhibits and schedules thereto, and (ii) evidence of all consents and approvals (if any) required pursuant to the Financing Agreements and such other matters as Agent may request;terms of the Senior Notes Indenture.
(tm) Agent the Senior Notes will have been issued in accordance with the terms and conditions of the Senior Notes Indenture without any waiver, modification or consent thereunder that is materially adverse to Lenders (as reasonably determined by Agent) unless approved by Agent, and FGI shall have received the audited financial statements net proceeds from the Senior Notes on the date of Borrowers and their Subsidiaries for closing of the Fiscal Year ended February 2, 2008Credit Facility substantially contemporaneously with the initial borrowing of Revolving Loans; and
(n) the Intercreditor Agreement, and such financial statements the other Financing Agreements and all instruments and documents hereunder and thereunder shall be have been duly executed and delivered to Agent, in their respective forms heretofore furnished to Agent or otherwise in form and substance reasonably satisfactory to Agent;
(u) Agent shall have received satisfactory background and reference checks on (i) each Borrower and each Guarantor and (ii) the chief executive officer, chief financial officer, chief operating officer and each other officer and director of each Borrower and each Guarantor, in each case, as determined by the Agent, and the Borrowers and the Guarantors shall have delivered all such documents and instruments necessary to effectuate such background and reference checks;
(v) Agent shall have received evidence satisfactory to Agent that Borrowers shall have received the Specified Subordinated Indebtedness, together with copies, certified by the chief executive officer or chief financial officer of the Administrative Borrower of all Specified Subordinated Indebtedness Documents. The terms of the Specified Subordinated Indebtedness and the Specified Subordinated Indebtedness Documents shall be reasonably acceptable to Agent, including, without limitation, with respect to payment subordination and blockage, remedy standstill periods, cross-default provisions and agreement not to contest the Obligations and the liens granted to Agent under the Financing Agreements, and the Obligations arising under the Financing Agreements and the liens granted to Agent under the Financing Agreements shall be senior and first in priority, as applicable, in all respects;
(w) all motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this Agreement and the Plan of Reorganization and the approval hereof and thereof shall be satisfactory in form and substance to Agent. All service and notice requirements in connection this Agreement and the Plan of Reorganization shall have been timely complied with and such requirements have been fulfilled in accordance with all applicable laws and rules. A Final Order confirming the Plan of Reorganization in form and substance acceptable to Agent (the “Confirmation Order”) shall have been entered in the Reorganization Cases, which order shall not have been subject to injunction, stayed, modified, appealed, reversed or otherwise affected;
(x) Borrowers’ Plan of Reorganization, as confirmed, shall be in form and substance satisfactory to Agent, including, without limitation, providing for the discharge of all Indebtedness and other claims against the Borrowers existing as of the Petition Date, the termination of all commitments relating thereto, and the termination, release and discharge of all liens or security interests granted thereunder (other than Permitted Liens), in each case on terms satisfactory to the Agent. The Bankruptcy Court shall have approved any amendments or modifications to the Plan of Reorganization and entered any and all related orders requested or approved by Agent in connection therewith, and no other amendments or modifications thereto shall have occurred except as shall have been consented to by Agent or the Required Lenders, as appropriate. All conditions precedent to the Effective Date (as defined in the Plan of Reorganization) of the Plan of Reorganization shall have been met (or the Agent shall have granted its prior written consent to a waiver thereof) and the Effective Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial Loans under this Agreement to be made on the Closing Date. The Confirmation Order shall be a Final Order and shall not have been reversed, modified, amended, subject to injunction, or stayed, shall be in full force and effect, and, unless otherwise agreed by Agent, all appeal periods relating to the Confirmation Order shall have expired, and, unless otherwise agreed by Agent, no appeals from the Confirmation Order shall be outstanding. Except with the prior written consent of the Agent, the Bankruptcy Court’s retention of jurisdiction under the Final Order confirming the Plan of Reorganization shall not extend to nor govern the enforcement of the Financing Agreements from and after the Closing Date, or any rights or remedies relating thereto;
(y) Agent shall have completed its legal due diligence with results reasonably satisfactory to Agent (including without limitation Agent’s reasonable satisfactory with any previously undisclosed issues of a business nature that arise in connection with the legal due diligence) for which Agent previously did not have actual knowledge of such issues prior to the date the Commitment Letter dated as of April 8, 2008 having been executed and which such issues affect any Borrower or any of its Subsidiaries or the Transaction that in the Agent’s reasonable judgment is inconsistent in a material and adverse manner with any such information disclosed to the Agent prior to the date of such Commitment Letter. Without limiting the generality of the foregoing, the corporate structure of the Borrowers and their subsidiaries, documentation evidencing Indebtedness of the Borrowers and their subsidiaries, material contracts and Governing Documents of the Borrowers and their subsidiaries shall be reasonably acceptable to the Agent; and
(z) Agent shall have received an officer’s certificate duly executed by chief executive officer, president, vice president or treasurer of each of the Borrowers and Guarantors certifying and attesting that, as of the Closing Date, (i) no appeal of the Confirmation Order has been filed; (ii) no request for a stay of the Confirmation Order pending appeal has been made; and (iii) the Confirmation Order has not been stayed in any manner.
(aa) Agent shall have received such other documents and instruments reasonably as Agent or its counsel may require or request.
Appears in 2 contracts
Samples: Loan and Security Agreement (Freedom Group, Inc.), Loan and Security Agreement (Freedom Group, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Agent and the Lenders to make the initial Loans or of Issuing Bank Lender to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) this Agreement or counterparts hereof shall have been duly executed by, and delivered to, Borrowers, Guarantors, Agent and Lenders; and the Administrative Agent shall have received such documents, instruments, agreements and legal opinions as Agent shall reasonably request in connection with the transactions contemplated by (i) counterparts of this Agreement and the other Financing Agreement, including (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all those listed other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the Closing Checklist attached hereto as Annex 1requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to Agentthe Lenders;
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may request to evidence and effectuate the termination by of the Existing Lenders Facility, including, but not limited to, a payoff letter, and (ii) the termination and release by each of the lenders under the Existing Facility of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their respective financing arrangements predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with Borrowers and Guarantorsthe appropriate Governmental Authority;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements Loan Documents shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may have requested in connection therewith, such documents where requested by the Administrative Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and Guarantor certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth ), the same complete name of such Borrower bylaws or Guarantor as is set forth herein and such document as shall set forth the organizational identification number articles of each Borrower Loan Party and resolutions of the board of directors (or Guarantor, if one is issued in its jurisdiction equivalent governing body) of incorporation or formationeach Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) a certificate signed by the chief executive officer, chief financial officer, president or vice president of each Borrower, certifying that since February 2, 2008 no event has occurred, that alone or together with other events, could reasonably be expected to have a Material Adverse Effect;
(e) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner reasonably 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 reasonably satisfactory to Agent, not more than seven (7) Business Days prior to the date hereof or such earlier date as Agent may agree;
(f) Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) an opening pro-forma balance sheet of Parent and its Subsidiaries (on a consolidated basis), reflecting the transactions contemplated hereby and (ii) the Disclosure Letter attaching the projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a monthly basis for the period through the end of the 2009 Fiscal Year and thereafter, on an annual basis for each Fiscal Year through the end of the 2012 Fiscal Year, in each case with the results and assumptions set forth in all of such projections in form and substance reasonably satisfactory to Agent;
(g) Agent shall have received a certificate signed by the chief executive officer or chief financial officer of Administrative Borrower, in form and substance satisfactory to Agent, attaching all consents, approvals, waivers, acknowledgments and other agreements from third persons (including any Governmental Authorities) which the Administrative Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens Liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing AgreementsLoan Documents, including, without limitation, Collateral Access Agreements (other than from the lessors of retail store locations) and Credit Card AcknowledgmentsAgreements;
(h) Adjusted Excess Availability as determined by Agent, as of the Closing Date, shall be not less than $12,000,000 after giving effect to the Plan of Reorganization, the initial Loans made or to be made, the Letters of Credit issued or to be issued in connection with the initial transactions hereunder, the incurrence of the Specified Subordinated Indebtedness, and the payment of all trade payables and expenses and liabilities of Borrowers in the ordinary course of business;
(i) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral;
(j) Agent shall have received and reviewed lien search results for each Borrower and Guarantor in such jurisdictions as Agent shall request, which search results shall be in form and substance satisfactory to Agent;
(k) Agent shall have received environmental audits of the Baldwyn Real Property conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology reasonably satisfactory to Agent, the results of which shall be satisfactory to Agent;
(l) Agent shall have received, in form and substance reasonably satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) insuring the priority, amount and sufficiency of the Closing Date Mortgaged Property, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests;
(m) Agent shall have received originals of the shares of the stock certificates (if any) representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(n) Agent shall have received a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the date hereof as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(o) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(p) Agent shall have received a written appraisal as to the Inventory of Borrowers and Guarantors and the Baldwyn Real Property, in each case by an appraiser acceptable to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(q) no material pending or threatened, litigation, proceeding, bankruptcy (other than the Reorganization Cases) or insolvency, injunction, order or claims with respect to Borrowers and Guarantors shall exist;
(r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing;
(s) Agent shall have received, in form and substance reasonably satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the Financing Agreements and such other matters as Agent may request;
(t) Agent shall have received the audited financial statements of Borrowers and their Subsidiaries for the Fiscal Year ended February 2, 2008, and such financial statements shall be in form and substance reasonably satisfactory to Agent;
(u) Agent shall have received satisfactory background and reference checks on (i) each Borrower and each Guarantor and (ii) the chief executive officer, chief financial officer, chief operating officer and each other officer and director of each Borrower and each Guarantor, in each case, as determined by the Agent, and the Borrowers and the Guarantors shall have delivered all such documents and instruments necessary to effectuate such background and reference checks;
(v) Agent shall have received evidence satisfactory to Agent that Borrowers shall have received the Specified Subordinated Indebtedness, together with copies, certified by the chief executive officer or chief financial officer of the Administrative Borrower of all Specified Subordinated Indebtedness Documents. The terms of the Specified Subordinated Indebtedness and the Specified Subordinated Indebtedness Documents shall be reasonably acceptable to Agent, including, without limitation, with respect to payment subordination and blockage, remedy standstill periods, cross-default provisions and agreement not to contest the Obligations and the liens granted to Agent under the Financing Agreements, and the Obligations arising under the Financing Agreements and the liens granted to Agent under the Financing Agreements shall be senior and first in priority, as applicable, in all respects;
(w) all motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this Agreement and the Plan of Reorganization and the approval hereof and thereof shall be satisfactory in form and substance to Agent. All service and notice requirements in connection this Agreement and the Plan of Reorganization shall have been timely complied with and such requirements have been fulfilled in accordance with all applicable laws and rules. A Final Order confirming the Plan of Reorganization in form and substance acceptable to Agent (the “Confirmation Order”) shall have been entered in the Reorganization Cases, which order shall not have been subject to injunction, stayed, modified, appealed, reversed or otherwise affected;
(x) Borrowers’ Plan of Reorganization, as confirmed, shall be in form and substance satisfactory to Agent, including, without limitation, providing for the discharge of all Indebtedness and other claims against the Borrowers existing as of the Petition Date, the termination of all commitments relating thereto, and the termination, release and discharge of all liens or security interests granted thereunder (other than Permitted Liens), in each case on terms satisfactory to the Agent. The Bankruptcy Court shall have approved any amendments or modifications to the Plan of Reorganization and entered any and all related orders requested or approved by Agent in connection therewith, and no other amendments or modifications thereto shall have occurred except as shall have been consented to by Agent or the Required Lenders, as appropriate. All conditions precedent to the Effective Date (as defined in the Plan of Reorganization) of the Plan of Reorganization shall have been met (or the Agent shall have granted its prior written consent to a waiver thereof) and the Effective Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial Loans under this Agreement to be made on the Closing Date. The Confirmation Order shall be a Final Order and shall not have been reversed, modified, amended, subject to injunction, or stayed, shall be in full force and effect, and, unless otherwise agreed by Agent, all appeal periods relating to the Confirmation Order shall have expired, and, unless otherwise agreed by Agent, no appeals from the Confirmation Order shall be outstanding. Except with the prior written consent of the Agent, the Bankruptcy Court’s retention of jurisdiction under the Final Order confirming the Plan of Reorganization shall not extend to nor govern the enforcement of the Financing Agreements from and after the Closing Date, or any rights or remedies relating thereto;
(y) Agent shall have completed its legal due diligence with results reasonably satisfactory to Agent (including without limitation Agent’s reasonable satisfactory with any previously undisclosed issues of a business nature that arise in connection with the legal due diligence) for which Agent previously did not have actual knowledge of such issues prior to the date the Commitment Letter dated as of April 8, 2008 having been executed and which such issues affect any Borrower or any of its Subsidiaries or the Transaction that in the Agent’s reasonable judgment is inconsistent in a material and adverse manner with any such information disclosed to the Agent prior to the date of such Commitment Letter. Without limiting the generality of the foregoing, the corporate structure of the Borrowers and their subsidiaries, documentation evidencing Indebtedness of the Borrowers and their subsidiaries, material contracts and Governing Documents of the Borrowers and their subsidiaries shall be reasonably acceptable to the Agent; and
(z) Agent shall have received an officer’s certificate duly executed by chief executive officer, president, vice president or treasurer of each of the Borrowers and Guarantors certifying and attesting that, as of the Closing Date, (i) no appeal of the Confirmation Order has been filed; (ii) no request for a stay of the Confirmation Order pending appeal has been made; and (iii) the Confirmation Order has not been stayed in any manner.
(aa) Agent shall have received such other documents and instruments reasonably as Agent or its counsel may require or request.
Appears in 2 contracts
Samples: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Agent and Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) this Agreement or counterparts hereof shall have been duly executed by, and delivered to, Borrowers, Guarantors, Agent and Lenders; and Agent shall have received such documents(i) counterparts of this Agreement, instruments(ii) for the account of each Lender requesting a note, agreements and legal opinions as Agent shall reasonably request in connection with a note, (iii) counterparts of the transactions contemplated by this Intercreditor Agreement, (iv) counterparts of the U.S. Pledge Agreement and the other Financing U.S. Special Pledge Agreement, including (v) counterparts or, to the extent required, duly executed copies, of the Canadian Collateral Documents, (vi) counterparts of the Mortgages and (vii) counterparts of all those listed other Loan Documents and all instruments and documents required to be delivered hereunder, in each case conforming to the Closing Checklist attached hereto as Annex 1requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to Agentthe Lenders;
(b) Agent shall have received, in form and substance satisfactory to Agent, (i) all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by the Existing Lenders of their respective financing arrangements with Borrowers Loan Parties, including, but not limited to, a payoff letter executed and Guarantors;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to 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 to be certified delivered by appropriate corporate officers or Governmental Authority (and including a copy each of the certificate Existing Lenders, as applicable, in respect of incorporation or formation their respective financing arrangements with the Loan Parties (including, to the extent applicable, delivery of each Borrower and Guarantor certified by the Secretary cash collateral and/or backstop letters of State (or equivalent Governmental Authority) which shall set forth the same complete name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation or formation);
(d) a certificate signed by the chief executive officer, chief financial officer, president or vice president of each Borrower, certifying that since February 2, 2008 no event has occurred, that alone or together with other events, could reasonably be expected to have a Material Adverse Effect;
(e) Agent shall have completed a field review of the Records and such other information credit with respect to the Collateral as Agent may require to determine the amount any outstanding letters of Loans available to Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner reasonably 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 Collateralcredit), the results of which in each case shall be reasonably satisfactory to Agent, not more than seven (7) Business Days prior to the date hereof or such earlier date as Agent may agree;
(f) Agent shall have received, in form and substance reasonably satisfactory to Agent, (i) an opening pro-forma balance sheet of Parent and its Subsidiaries (on a consolidated basis), reflecting the transactions contemplated hereby and (ii) the Disclosure Letter attaching the projected income statements, balance sheets termination and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a monthly basis for the period through the end release by each of the 2009 Fiscal Year and thereafterExisting Lenders, on an annual basis for each Fiscal Year through the end as applicable, of the 2012 Fiscal Year, in each case with the results and assumptions set forth in all of such projections in form and substance reasonably satisfactory to Agent;
(g) Agent shall have received a certificate signed by the chief executive officer or chief financial officer of Administrative Borrower, in form and substance satisfactory to Agent, attaching 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 any interest in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement any assets and the other Financing Agreements, including, without limitation, Collateral Access Agreements (other than from the lessors of retail store locations) and Credit Card Acknowledgments;
(h) Adjusted Excess Availability as determined by Agent, as of the Closing Date, shall be not less than $12,000,000 after giving effect to the Plan of Reorganization, the initial Loans made or to be made, the Letters of Credit issued or to be issued in connection with the initial transactions hereunder, the incurrence of the Specified Subordinated Indebtedness, and the payment of all trade payables and expenses and liabilities of Borrowers in the ordinary course of business;
(i) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral;
(j) Agent shall have received and reviewed lien search results for each Borrower and Guarantor in such jurisdictions as Agent shall request, which search results shall be in form and substance satisfactory to Agent;
(k) Agent shall have received environmental audits of the Baldwyn Real Property conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology reasonably satisfactory to Agent, the results of which shall be satisfactory to Agent;
(l) Agent shall have received, in form and substance reasonably satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) insuring the priority, amount and sufficiency of the Closing Date Mortgaged Property, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests;
(m) Agent shall have received originals of the shares of the stock certificates (if any) representing all of the issued and outstanding shares of the Capital Stock properties of each Borrower and Guarantor (other than Parent) and owned by any Borrower or GuarantorLoan Party, in each case together with stock powers duly executed in blank with respect thereto;
(n) Agent shall have received a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the date hereof as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf by it or each of Borrowers;
them, including, but not limited to, (oA) Agent shall have received evidence UCC termination statements for all UCC financing statements previously filed by it or any of insurance them or their predecessors, as secured party and loss payee endorsements required hereunder any Loan Party, as debtor; (B) PPSA terminations or discharges for all PPSA financing statements or registrations previously filed with respect to any such interests that do not constitute permitted Liens, filed against any Borrower or Guarantor, as debtor; and under the other Financing Agreements(C) satisfactions and discharges of any mortgages, deeds of trust, hypothecs or deeds to secure debt by any Loan Party in favor of it or any of them, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(p) Agent shall have received a written appraisal as to the Inventory of Borrowers and Guarantors and the Baldwyn Real Property, in each case by an appraiser acceptable to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(q) no material pending or threatened, litigation, proceeding, bankruptcy (other than the Reorganization Cases) or insolvency, injunction, order or claims with respect to Borrowers and Guarantors shall exist;
(r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing;
(s) Agent shall have received, in form and substance reasonably satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the Financing Agreements and such other matters as Agent may request;
(t) Agent shall have received the audited financial statements of Borrowers and their Subsidiaries for the Fiscal Year ended February 2, 2008, and such financial statements shall be in form and substance reasonably satisfactory to Agent;
(u) Agent shall have received satisfactory background and reference checks on (i) each Borrower and each Guarantor and (ii) the chief executive officer, chief financial officer, chief operating officer and each other officer and director of each Borrower and each Guarantor, in each case, as determined by the Agent, and the Borrowers and the Guarantors shall have delivered all such documents and instruments necessary to effectuate such background and reference checks;
(v) Agent shall have received evidence satisfactory to Agent that Borrowers shall have received the Specified Subordinated Indebtedness, together with copies, certified by the chief executive officer or chief financial officer of the Administrative Borrower of all Specified Subordinated Indebtedness Documents. The terms of the Specified Subordinated Indebtedness and the Specified Subordinated Indebtedness Documents shall be reasonably acceptable to Agent, including, without limitation, with respect to payment subordination and blockage, remedy standstill periods, cross-default provisions and agreement not to contest the Obligations and the liens granted to Agent under the Financing Agreements, and the Obligations arising under the Financing Agreements and the liens granted to Agent under the Financing Agreements shall be senior and first in priority, as applicable, in all respects;
(w) all motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this Agreement and the Plan of Reorganization and the approval hereof and thereof shall be satisfactory in form and substance to Agent. All service and notice requirements in connection this Agreement and the Plan of Reorganization shall have been timely complied with and such requirements have been fulfilled in accordance with all applicable laws and rules. A Final Order confirming the Plan of Reorganization in form and substance acceptable to Agent (the “Confirmation Order”) shall have been entered in the Reorganization Cases, which order shall not have been subject to injunction, stayed, modified, appealed, reversed or otherwise affected;
(x) Borrowers’ Plan of Reorganization, as confirmed, shall be in form and substance satisfactory to Agent, including, without limitation, providing for the discharge of all Indebtedness and other claims against the Borrowers existing as of the Petition Date, the termination of all commitments relating thereto, and the termination, release and discharge of all liens or security interests granted thereunder (other than Permitted Liens), in each case on terms satisfactory to the Agent. The Bankruptcy Court shall have approved any amendments or modifications to the Plan of Reorganization and entered any and all related orders requested or approved by Agent in connection therewith, and no other amendments or modifications thereto shall have occurred except as shall have been consented to by Agent or the Required Lenders, as appropriate. All conditions precedent to the Effective Date (as defined in the Plan of Reorganization) of the Plan of Reorganization shall have been met (or the Agent shall have granted its prior written consent to a waiver thereof) and the Effective Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial Loans under this Agreement to be made on the Closing Date. The Confirmation Order shall be a Final Order and shall not have been reversed, modified, amended, subject to injunction, or stayed, shall be in full force and effect, and, unless otherwise agreed by Agent, all appeal periods relating to the Confirmation Order shall have expired, and, unless otherwise agreed by Agent, no appeals from the Confirmation Order shall be outstanding. Except recording with the prior written consent of the Agent, the Bankruptcy Court’s retention of jurisdiction under the Final Order confirming the Plan of Reorganization shall not extend to nor govern the enforcement of the Financing Agreements from and after the Closing Date, or any rights or remedies relating theretoappropriate Governmental Authority;
(y) Agent shall have completed its legal due diligence with results reasonably satisfactory to Agent (including without limitation Agent’s reasonable satisfactory with any previously undisclosed issues of a business nature that arise in connection with the legal due diligence) for which Agent previously did not have actual knowledge of such issues prior to the date the Commitment Letter dated as of April 8, 2008 having been executed and which such issues affect any Borrower or any of its Subsidiaries or the Transaction that in the Agent’s reasonable judgment is inconsistent in a material and adverse manner with any such information disclosed to the Agent prior to the date of such Commitment Letter. Without limiting the generality of the foregoing, the corporate structure of the Borrowers and their subsidiaries, documentation evidencing Indebtedness of the Borrowers and their subsidiaries, material contracts and Governing Documents of the Borrowers and their subsidiaries shall be reasonably acceptable to the Agent; and
(z) Agent shall have received an officer’s certificate duly executed by chief executive officer, president, vice president or treasurer of each of the Borrowers and Guarantors certifying and attesting that, as of the Closing Date, (i) no appeal of the Confirmation Order has been filed; (ii) no request for a stay of the Confirmation Order pending appeal has been made; and (iii) the Confirmation Order has not been stayed in any manner.
(aa) Agent shall have received such other documents and instruments reasonably as Agent or its counsel may require or request.
Appears in 2 contracts
Samples: Loan and Security Agreement (Louisiana-Pacific Corp), Loan and Security Agreement (Louisiana-Pacific Corp)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Agent and the Lenders to make the initial Loans or of Issuing Bank Lender to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) this Agreement or counterparts hereof shall have been duly executed by, and delivered to, Borrowers, Guarantors, Agent and Lenders; and the Administrative Agent shall have received such documents, instruments, agreements and legal opinions as Agent shall reasonably request in connection with the transactions contemplated by (i) counterparts of this Agreement and the other Financing Agreement, including (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all those listed other Loan Documents and all instruments and documents (including, without limitation, the Information Certificate) required to be delivered hereunder, in each case conforming to the Closing Checklist attached hereto as Annex 1requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent acknowledges and agrees that the drafts of the Pledge Agreement and the Intercreditor Agreement circulated for review on or about January 21, 2011 are satisfactory to the Administrative Agent (subject to modifications satisfactory to the Administrative Agent and the Borrowers to reflect changes to the terms of the Transaction agreed to by the Administrative Agent and the Borrowers subsequent to January 21, 2011);
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination by of the Existing Lenders Term Loan Agreement, including, but not limited to, a payoff letter, and (ii) the termination and release by Xxxxx Fargo as lender under the Existing Term Loan Agreement of any interest in and to any assets and properties of each Loan Party, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their respective financing arrangements predecessors, as secured party and any Loan Party, as debtor and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Loan Party in favor of it or any of them, in form acceptable for recording with Borrowers and Guarantorsthe appropriate Governmental Authority;
(c) the Loan Parties shall have adopted all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to AgentLoan Documents, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may reasonably have requested in connection therewiththerewith and, where requested by the Administrative Agent or its counsel, the Loan Parties shall have used their commercially reasonable efforts to cause such documents to be certified by appropriate corporate officers or of Governmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and Guarantor certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth ), the same complete name of such Borrower bylaws or Guarantor as is set forth herein and such document as shall set forth the organizational identification number articles of each Borrower Loan Party and resolutions of the board of directors (or Guarantor, if one is issued in its jurisdiction equivalent governing body) of incorporation or formationeach Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) a certificate signed by the chief executive officer, chief financial officer, president Administrative Agent or vice president of each Borrower, certifying that since February 2, 2008 no event has occurred, that alone or together with other events, could reasonably be expected to have a Material Adverse Effect;
(e) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner reasonably 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 reasonably satisfactory to Agent, not more than seven (7) Business Days prior to the date hereof or such earlier date as Agent may agree;
(f) Agent its counsel shall have received, in form and substance reasonably satisfactory to the Administrative Agent, (i) an opening pro-forma balance sheet of Parent all consents with respect to Intellectual Property, solely to the extent such consent is necessary or desirable to perfect the Administrative Agent’s security in and its Subsidiaries (on a consolidated basis)Lien upon such Intellectual Property, reflecting the transactions contemplated hereby and (ii) all necessary Collateral Access Agreements;
(e) the Disclosure Letter attaching Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a monthly basis for the period through the end security interest of the 2009 Fiscal Year Administrative Agent in the Collateral, (ii) all instruments constituting Collateral other than Senior Notes Priority Collateral and thereafter(iii) evidence, on an annual basis for each Fiscal Year through the end of the 2012 Fiscal Year, in each case with the results and assumptions set forth in all of such projections in form and substance reasonably satisfactory to Agent;
(g) Agent shall have received a certificate signed by the chief executive officer or chief financial officer of Administrative Borrower, in form and substance satisfactory to Agent, attaching 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, without limitation, Collateral Access Agreements (other than from the lessors of retail store locations) and Credit Card Acknowledgments;
(h) Adjusted Excess Availability as determined by Agent, as of the Closing Date, shall be not less than $12,000,000 after giving effect to the Plan of Reorganization, the initial Loans made or to be made, the Letters of Credit issued or to be issued in connection with the initial transactions hereunder, the incurrence of the Specified Subordinated Indebtedness, and the payment of all trade payables and expenses and liabilities of Borrowers in the ordinary course of business;
(i) Agent shall have received evidence, in form and substance satisfactory to Agent, that upon such filings and recordations, the Administrative Agent has will have a valid perfected (A) first priority security interest in Lien upon all of the ABL Priority Collateral and (B) second priority Lien upon all of the Senior Notes Priority Collateral;
(jf) the Administrative Agent shall have received and reviewed lien Lien and judgment search results for the jurisdiction of organization of each Borrower Loan Party; and Guarantor in such jurisdictions as Agent shall requestthe jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance reasonably satisfactory to the Administrative Agent;
(kg) the Administrative Agent shall have received environmental audits a duly completed and executed Instrument of Assignment and Notice of Assignment for each Material Government Contract, to the Baldwyn Real Property conducted by an independent environmental engineering firm acceptable extent not previously obtained prior to AgentMarch 1, and in form, scope and methodology reasonably satisfactory to Agent, the results of which shall be satisfactory to Agent2011;
(lh) Agent shall have received, in form and substance reasonably satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) insuring the priority, amount and sufficiency of the Closing Date Mortgaged Property, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests;
(m) Administrative Agent shall have received reasonable evidence (including confirmation by the Senior Notes Agent) that the Senior Notes Agent has received originals of the shares of the stock certificates (if any) representing all of the issued and outstanding certificated shares (or similar units) of the Capital Stock of each Borrower and Guarantor Loan Party (other than ParentHoldings) and owned by any Borrower each Subsidiary of each Loan Party which certificated shares (or Guarantorsimilar units) are required to be pledged under the Senior Notes Indenture, in each case case, together with an undated stock powers power for each such certificate duly executed in blank with respect theretoby the registered owner thereof;
(ni) Agent shall have received a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the date hereof as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(o) Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing AgreementsLoan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as loss payeepayee and additional insured;
(pj) Agent shall have received a written appraisal as to the Inventory of Borrowers and Guarantors and the Baldwyn Real Property, in each case by an appraiser acceptable to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(q) no material pending or threatened, litigation, proceeding, bankruptcy (other than the Reorganization Cases) or insolvency, injunction, order or claims with respect to Borrowers and Guarantors shall exist;
(r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing;
(s) Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, such customary opinion letters of special legal counsel to Borrowers and Guarantors the Loan Parties, with respect to the Financing Agreements Loan Parties, which such opinions shall permit reliance by successors and such other matters as permitted assigns of each of the Administrative Agent may requestand the Lenders subject to customary limitations;
(tk) the Administrative Agent shall have received a certificate, in form and substance satisfactory to the audited Administrative Agent, executed by an authorized officer of the Company certifying that (i) no Material Adverse Effect shall have occurred since December 31, 2010, (ii) neither the Company nor Holdings shall have paid any Cash Dividend since December 31, 2010 and (iii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (C) Holdings and its Subsidiaries, taken as a whole, are Solvent and (D) the Company and its Subsidiaries, taken as a whole, are Solvent;
(l) the Administrative Agent shall have received an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $45,000,000, in each case, after giving pro forma effect to (A) the payment of fees and expenses of the Transactions, (B) the initial Revolving Loans made or to be made and Letters of Credit issued or to be issued in connection with the Transactions and (C) the payment of the Cash Distribution;
(m) the pro forma capital and ownership structure, the shareholding arrangements and the management of the Company and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Administrative Agent; it being understood that such structure, arrangements and management of the Company and its Subsidiaries as described in the “Marketing Information” (as such term is defined in the Commitment Letter) previously delivered to the Administrative Agent is satisfactory;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, (i) an opening pro forma balance sheet of the Borrowers as of the Closing Date prepared after giving effect to the Transactions; (ii) projected pro forma financial statements of Borrowers budgets for Holdings and their its Subsidiaries after giving effect to the Transactions, which shall be quarterly for the Fiscal Year ended February 2fiscal year ending December 31, 20082011 and annually thereafter for the term of the Loan Agreement, with the results and such financial statements shall be assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent (and not inconsistent with information provided to the Lenders prior to the Closing Date); (iii) monthly financial detail for the projected Fixed Charge Coverage Ratio calculations and Borrowing Base calculations; (iv) audited financial statements of Holdings and its Subsidiaries for the fiscal year ending December 31, 2010 (including the accompanying notes thereto); (v) financial statement reconciliation detail on a historical and projected basis from Holdings to the Company; and (vi) supporting back-up detail for EBITDA adjustments, to the extent requested by the Administrative Agent;
(uo) the Administrative Agent shall have completed, to its reasonable satisfaction, its review of all Material Contracts and Material Government Contracts (and any amendments thereto) delivered on or after March 1, 2011;
(p) the Administrative Agent shall have received satisfactory background and reference checks on (i) each Borrower and each Guarantor and (ii) the chief executive officer, chief financial officer, chief operating officer and each other officer and director of each Borrower and each Guarantor, in each case, as determined a certificate provided by the Agent, and the Borrowers and the Guarantors shall have delivered all such documents and instruments necessary to effectuate such background and reference checks;
(v) Agent shall have received evidence satisfactory to Agent Company that Borrowers shall have received the Specified Subordinated Indebtedness, together with copies, certified sets forth information required by the chief executive officer or chief financial officer of the Administrative Borrower of all Specified Subordinated Indebtedness Documents. The terms of the Specified Subordinated Indebtedness and the Specified Subordinated Indebtedness Documents shall be reasonably acceptable to Agent, Patriot Act including, without limitation, with respect to payment subordination the identity of each Loan Party, the name and blockage, remedy standstill periods, cross-default provisions address of each Loan Party and agreement not to contest other information that will allow the Obligations and the liens granted to Administrative Agent under the Financing Agreements, and the Obligations arising under the Financing Agreements and the liens granted to Agent under the Financing Agreements shall be senior and first in priorityor any Lender, as applicable, in all respects;
(w) all motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this Agreement and the Plan of Reorganization and the approval hereof and thereof shall be satisfactory in form and substance to Agent. All service and notice requirements in connection this Agreement and the Plan of Reorganization shall have been timely complied with and such requirements have been fulfilled identify each Loan Party in accordance with all applicable laws and rules. A Final Order confirming the Plan of Reorganization in form and substance acceptable to Agent (the “Confirmation Order”) shall have been entered in the Reorganization CasesAct, which order shall not have been subject to injunction, stayed, modified, appealed, reversed or otherwise affected;
(x) Borrowers’ Plan of Reorganization, as confirmed, shall be in form and substance satisfactory to Agentthe Administrative Agent and the Lenders;
(q) substantially simultaneously with the closing of this Agreement, the Senior Notes shall have been issued on the terms and conditions set forth in the Senior Notes Indenture. The Administrative Agent shall have received final certified copies of the Senior Notes Documents, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, including certification by a Responsible Officer of the Company that such documents are in full force and effect as of the Closing Date;
(r) the Loan Parties shall have received governmental, shareholder and third party consents (including, to the extent applicable, consents from third parties with respect to Material Contracts) and approvals necessary in connection with the Transactions unless the absence of any such consent or approval could not reasonably be expected to have a Material Adverse Effect;
(s) the Administrative Agent shall have received a reasonably satisfactory funds flow memorandum in connection with the Transactions setting forth the sources and uses and accompanied by payment instructions therefor; and
(t) the Borrower shall have paid all fees and expenses required to be paid hereunder, including without limitation, providing for under the discharge of all Indebtedness and other claims against the Borrowers existing as of the Petition Date, the termination of all commitments relating thereto, and the termination, release and discharge of all liens or security interests granted thereunder (other than Permitted Liens), in each case on terms satisfactory to the Agent. The Bankruptcy Court shall have approved any amendments or modifications to the Plan of Reorganization and entered any Fee Letter and all related orders requested fees and expenses invoiced on or approved by Agent in connection therewith, and no other amendments or modifications thereto shall have occurred except as shall have been consented before the Business Day prior to by Agent or the Required Lenders, as appropriate. All conditions precedent to the Effective Date (as defined in the Plan of Reorganization) of the Plan of Reorganization shall have been met (or the Agent shall have granted its prior written consent to a waiver thereof) and the Effective Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial Loans under this Agreement to be made on the Closing Date. The Confirmation Order Administrative Agent shall be a Final Order notify the Administrative Borrower and shall not the Lenders that the conditions specified in Section 5.1 have been reversedsatisfied or waived and that the Closing Date has occurred, modifiedand such notice, amended, subject to injunction, or stayedabsent manifest error, shall be in full force conclusive and effect, and, unless otherwise agreed by Agent, all appeal periods relating to the Confirmation Order shall have expired, and, unless otherwise agreed by Agent, no appeals from the Confirmation Order shall be outstanding. Except with the prior written consent of the Agent, the Bankruptcy Court’s retention of jurisdiction under the Final Order confirming the Plan of Reorganization shall not extend to nor govern the enforcement of the Financing Agreements from and after the Closing Date, or any rights or remedies relating thereto;
(y) Agent shall have completed its legal due diligence with results reasonably satisfactory to Agent (including without limitation Agent’s reasonable satisfactory with any previously undisclosed issues of a business nature that arise in connection with the legal due diligence) for which Agent previously did not have actual knowledge of such issues prior to the date the Commitment Letter dated as of April 8, 2008 having been executed and which such issues affect any Borrower or any of its Subsidiaries or the Transaction that in the Agent’s reasonable judgment is inconsistent in a material and adverse manner with any such information disclosed to the Agent prior to the date of such Commitment Letter. Without limiting the generality of the foregoing, the corporate structure of the Borrowers and their subsidiaries, documentation evidencing Indebtedness of the Borrowers and their subsidiaries, material contracts and Governing Documents of the Borrowers and their subsidiaries shall be reasonably acceptable to the Agent; and
(z) Agent shall have received an officer’s certificate duly executed by chief executive officer, president, vice president or treasurer of each of the Borrowers and Guarantors certifying and attesting that, as of the Closing Date, (i) no appeal of the Confirmation Order has been filed; (ii) no request for a stay of the Confirmation Order pending appeal has been made; and (iii) the Confirmation Order has not been stayed in any mannerbinding.
(aa) Agent shall have received such other documents and instruments reasonably as Agent or its counsel may require or request.
Appears in 2 contracts
Samples: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Agent and the Lenders to make the initial Loans or of the applicable Issuing Bank Banks to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) this Agreement or counterparts hereof shall have been duly executed by, and delivered to, Borrowers, Guarantors, Agent and Lenders; and the Administrative Agent shall have received such documents, instruments, agreements and legal opinions as Agent shall reasonably request in connection with the transactions contemplated by (i) counterparts of this Agreement and the other Financing Agreement, including (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all those listed other Loan Documents and all instruments and documents required to be delivered hereunder, in each case conforming to the Closing Checklist attached hereto as Annex 1requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to Agentthe Lenders;
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination by of the Existing Lenders of their respective financing arrangements with Borrowers and GuarantorsFacility, including, but not limited to, a payoff letter for the Existing Facility;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements Loan Documents shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may have requested in connection therewith, such documents where requested by the Administrative Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and Guarantor certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth ), the same complete name of such Borrower bylaws or Guarantor as is set forth herein and such document as shall set forth the organizational identification number articles of each Borrower Loan Party and resolutions of the board of directors (or Guarantor, if one is issued in its jurisdiction equivalent governing body) of incorporation or formationeach Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) no material adverse change or material adverse effect, in either case, shall have occurred in the business, operations, financial condition, liabilities (whether actual or contingent) or properties of the Borrowers and their Subsidiaries, taken as a certificate signed by the chief executive officerwhole, chief financial officersince December 31, president or vice president of each Borrower, certifying that since February 2, 2008 no event has occurred, that alone or together with other events, could reasonably be expected to have a Material Adverse Effect2008;
(e) the Administrative Agent shall have received:
(i) (A) an appraisal of the Loan Parties’ Inventory, in form and substance reasonably satisfactory to the Administrative Agent; and (B) a completed a field review of the Records and such other information with respect to the Collateral as the Administrative Agent may reasonably require to determine the amount of Loans available to the Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers and/or roll-forwards of Accounts and Inventory through the date of closing Closing Date and test counts of the Inventory in a manner reasonably satisfactory to the Administrative Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable the Administrative Agent to accurately identify and verify the Collateral), the results of which which, in each case described in the preceding subclauses (A) and (B), shall be reasonably satisfactory to Agent, not more than seven the Administrative Agent in all material respects; and
(7ii) Business Days prior (A) a bring-down field exam with respect to the date hereof or such earlier date as Agent may agree;
(f) Agent shall have received, Collateral in form and substance substance, and with results, reasonably satisfactory to Agent, the Administrative Agent in all material respects and (iB) an opening pro-forma balance sheet of Parent and its Subsidiaries (on a consolidated basis), reflecting the transactions contemplated hereby and (ii) the Disclosure Letter attaching the projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a monthly basis for the period through the end of the 2009 Fiscal Year and thereafter, on an annual basis for each Fiscal Year through the end of the 2012 Fiscal Year, in each case with the results and assumptions set forth in all of such projections in form and substance reasonably satisfactory to Agent;
(g) Agent shall have received a certificate signed by the chief executive officer or chief financial officer of Administrative Borrower, in form and substance satisfactory to Agent, attaching 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, initial Borrowing Base Certificate including, without limitationinter alia, Collateral Access Agreements (other than from the lessors of retail store locations) and Credit Card Acknowledgments;
(h) Adjusted calculations demonstrating that Excess Availability as determined by Agent, as of the Closing Date, shall be Date is not less than $12,000,000 300,000,000, in each case, after giving pro forma effect to the Plan payment of Reorganization, fees and expenses of the transactions contemplated by this Agreement to occur on the Closing Date and the initial Loans made or to be made, the made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder, the incurrence of the Specified Subordinated Indebtedness, and the payment of all trade payables and expenses and liabilities of Borrowers in the ordinary course of business;
(if) the Loan Parties shall have received all governmental, shareholder and third party approvals necessary in connection with the transactions contemplated by this Agreement and the other Loan Documents, and each such approval shall be in full force and effect;
(g) the Borrowers shall have a cash management system in place that is reasonably satisfactory to the Administrative Agent;
(h) the Administrative Agent shall have received (i) all filings and recordations that are necessary to perfect the security interest of the Administrative Agent in the Collateral and (ii) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that upon such filings and recordations, the Administrative Agent has will have a valid perfected first priority security interest in Lien upon all of the Collateral; provided that deposit accounts and securities accounts that are Collateral shall be subject to the provisions of Section 6.3;
(ji) the Administrative Agent shall have received and reviewed lien Lien and judgment search results for the jurisdiction of organization of each Borrower Loan Party and Guarantor in such jurisdictions as Agent shall requestthe jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance satisfactory to the Administrative Agent;
(kj) Agent shall have received environmental audits of the Baldwyn Real Property conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology reasonably satisfactory to Agent, the results of which shall be satisfactory to Agent;
(l) Agent shall have received, in form and substance reasonably satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) insuring the priority, amount and sufficiency of the Closing Date Mortgaged Property, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests;
(m) Agent shall have received originals of the shares of the stock certificates (if any) representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(n) Agent shall have received a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the date hereof as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(o) Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing AgreementsLoan Documents, in form and substance reasonably satisfactory to the Administrative Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(pk) Agent shall have received a written appraisal as to the Inventory of Borrowers and Guarantors and the Baldwyn Real Property, in each case by an appraiser acceptable to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(q) no material pending or threatened, litigation, proceeding, bankruptcy (other than the Reorganization Cases) or insolvency, injunction, order or claims with respect to Borrowers and Guarantors shall exist;
(r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing;
(s) Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, such an opinion letters letter of legal counsel to Borrowers and Guarantors the Loan Parties, with respect to the Financing Agreements Loan Parties, which such opinions shall permit reliance by successors and such other matters as permitted assigns of each of the Administrative Agent may requestand the Lenders;
(tl) the Administrative Agent shall have received the audited financial statements of Borrowers and their Subsidiaries for the Fiscal Year ended February 2a certificate, 2008, and such financial statements shall be in form and substance reasonably satisfactory to the Administrative Agent;
(u) Agent shall have received satisfactory background and reference checks on (i) each Borrower and each Guarantor and (ii) the chief executive officer, chief financial officer, chief operating officer and each other officer and director of each Borrower and each Guarantor, in each case, as determined executed by the Agent, and the Borrowers and the Guarantors shall have delivered all such documents and instruments necessary to effectuate such background and reference checks;
(v) Agent shall have received evidence satisfactory to Agent that Borrowers shall have received the Specified Subordinated Indebtedness, together with copies, certified by the chief executive officer or chief financial officer of the Company certifying that (i) to the knowledge of such officer, no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental instrumentality that purports to affect any Loan Party or any transaction contemplated by the Loan Documents, which action, suit, investigation or proceeding could reasonably be expected to have a Material Adverse Effect and (ii) immediately after giving effect to this Agreement (including the initial extensions of credit hereunder), the other Loan Documents, and all the transactions contemplated therein or thereby to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects, (C) the Company and its Subsidiaries taken as a whole are Solvent;
(m) the Administrative Borrower Agent shall have received an executed Notice of all Specified Subordinated Indebtedness Documents. The terms Account Designation;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, financial projections prepared by management of the Specified Subordinated Indebtedness Company and its Subsidiaries, which will be quarterly for the Specified Subordinated Indebtedness Documents first year after the Closing Date and annually thereafter for the term of this Agreement (and which will not be inconsistent with information provided to the Lenders prior to the Closing Date);
(o) the Administrative Agent shall be have received, in form and substance reasonably acceptable satisfactory thereto, copies of unaudited financial statements of the Company and its Subsidiaries for each fiscal monthly period ended since December 31, 2008 (including the fiscal monthly period ending at least fifteen (15) Business Days prior to Agentthe Closing Date);
(p) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, statements demonstrating that the accounts payable of the Company and its Subsidiaries are at a level and in a condition consistent with historical practices;
(q) the Administrative Agent shall have received a certificate provided by the Company that sets forth information required by the Patriot Act including, without limitation, with respect to payment subordination the identity of each Loan Party, the name and blockage, remedy standstill periods, cross-default provisions address of each Loan Party and agreement not to contest other information requested by the Obligations and Administrative Agent that will allow the liens granted to Administrative Agent under the Financing Agreements, and the Obligations arising under the Financing Agreements and the liens granted to Agent under the Financing Agreements shall be senior and first in priorityor any Lender, as applicable, to identify each Loan Party in all respectsaccordance with the Act, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders;
(wr) the Administrative Agent shall have received a sources and uses table accompanied by payment instructions;
(s) all motions fees and expenses required to be paid hereunder, including without limitation, (i) under the Fee Letter and (ii) all other fees and expenses invoiced on or before the Closing Date, shall have been paid in full in cash or will be paid on the Closing Date; and
(t) all other documents to be filed with and submitted to the Bankruptcy Court legal matters in connection with the transactions contemplated by this Agreement and the Plan of Reorganization and the approval hereof and thereof shall be reasonably satisfactory in form and substance to Agentthe Administrative Agent and its counsel. All service and notice requirements in connection this Agreement The Administrative Agent shall notify the Administrative Borrower and the Plan of Reorganization shall Lenders that the conditions specified in Section 5.1 have been timely complied with satisfied or waived and that the Closing Date has occurred, and such requirements have been fulfilled in accordance with all applicable laws and rules. A Final Order confirming the Plan of Reorganization in form and substance acceptable to Agent (the “Confirmation Order”) shall have been entered in the Reorganization Casesnotice, which order shall not have been subject to injunction, stayed, modified, appealed, reversed or otherwise affected;
(x) Borrowers’ Plan of Reorganization, as confirmedabsent manifest error, shall be in form conclusive and substance satisfactory to Agent, including, without limitation, providing for the discharge of all Indebtedness and other claims against the Borrowers existing as of the Petition Date, the termination of all commitments relating thereto, and the termination, release and discharge of all liens or security interests granted thereunder (other than Permitted Liens), in each case on terms satisfactory to the Agent. The Bankruptcy Court shall have approved any amendments or modifications to the Plan of Reorganization and entered any and all related orders requested or approved by Agent in connection therewith, and no other amendments or modifications thereto shall have occurred except as shall have been consented to by Agent or the Required Lenders, as appropriate. All conditions precedent to the Effective Date (as defined in the Plan of Reorganization) of the Plan of Reorganization shall have been met (or the Agent shall have granted its prior written consent to a waiver thereof) and the Effective Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial Loans under this Agreement to be made on the Closing Date. The Confirmation Order shall be a Final Order and shall not have been reversed, modified, amended, subject to injunction, or stayed, shall be in full force and effect, and, unless otherwise agreed by Agent, all appeal periods relating to the Confirmation Order shall have expired, and, unless otherwise agreed by Agent, no appeals from the Confirmation Order shall be outstanding. Except with the prior written consent of the Agent, the Bankruptcy Court’s retention of jurisdiction under the Final Order confirming the Plan of Reorganization shall not extend to nor govern the enforcement of the Financing Agreements from and after the Closing Date, or any rights or remedies relating thereto;
(y) Agent shall have completed its legal due diligence with results reasonably satisfactory to Agent (including without limitation Agent’s reasonable satisfactory with any previously undisclosed issues of a business nature that arise in connection with the legal due diligence) for which Agent previously did not have actual knowledge of such issues prior to the date the Commitment Letter dated as of April 8, 2008 having been executed and which such issues affect any Borrower or any of its Subsidiaries or the Transaction that in the Agent’s reasonable judgment is inconsistent in a material and adverse manner with any such information disclosed to the Agent prior to the date of such Commitment Letter. Without limiting the generality of the foregoing, the corporate structure of the Borrowers and their subsidiaries, documentation evidencing Indebtedness of the Borrowers and their subsidiaries, material contracts and Governing Documents of the Borrowers and their subsidiaries shall be reasonably acceptable to the Agent; and
(z) Agent shall have received an officer’s certificate duly executed by chief executive officer, president, vice president or treasurer of each of the Borrowers and Guarantors certifying and attesting that, as of the Closing Date, (i) no appeal of the Confirmation Order has been filed; (ii) no request for a stay of the Confirmation Order pending appeal has been made; and (iii) the Confirmation Order has not been stayed in any mannerbinding.
(aa) Agent shall have received such other documents and instruments reasonably as Agent or its counsel may require or request.
Appears in 1 contract
Samples: Loan and Security Agreement (Mohawk Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Agent and the Lenders to make the initial Loans or of the applicable Issuing Bank Banks to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) this Agreement or counterparts hereof shall have been duly executed by, and delivered to, Borrowers, Guarantors, Agent and Lenders; and the Administrative Agent shall have received such documents, instruments, agreements and legal opinions as Agent shall reasonably request in connection with the transactions contemplated by (i) counterparts of this Agreement and the other Financing Agreement, including (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all those listed other Loan Documents and all instruments and documents required to be delivered hereunder, in each case conforming to the Closing Checklist attached hereto as Annex 1requirements hereunder and thereunder and executed by a duly authorized officer or director of each party thereto or of the general partner of any partnership party thereto, and in each case in form and substance reasonably satisfactory to Agentthe Lenders;
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, all releases, terminations and such other documents as the Administrative Agent may reasonably request to evidence and effectuate the termination by of the Existing Lenders of their respective financing arrangements with Borrowers and GuarantorsFacility, including, but not limited to, a payoff letter for the Existing Facility;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements Loan Documents shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may have requested in connection therewith, such documents where requested by the Administrative Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and Guarantor certificates of good standing in (i) the state of organization, (ii) the state where such Loan Party’s principal place of business is located and (iii) each state where such Loan Party owns material real property, in each case, certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth ), the same complete name of such Borrower bylaws or Guarantor as is set forth herein and such document as shall set forth the organizational identification number articles of each Borrower Loan Party and resolutions of the board of directors (or Guarantor, if one is issued in its jurisdiction equivalent governing body) of incorporation or formationeach Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby);
(d) no material adverse change or material adverse effect, in either case, shall have occurred in the business, operations, financial condition, liabilities (whether actual or contingent) or properties of the Borrowers and their Subsidiaries, taken as a certificate signed by the chief executive officerwhole, chief financial officersince December 31, president or vice president of each Borrower, certifying that since February 2, 2008 no event has occurred, that alone or together with other events, could reasonably be expected to have a Material Adverse Effect2008;
(e) the Administrative Agent shall have received:
(i) (A) an appraisal of the Loan Parties’ Inventory, in form and substance reasonably satisfactory to the Administrative Agent; and (B) a completed a field review of the Records and such other information with respect to the Collateral as the Administrative Agent may reasonably require to determine the amount of Loans available to the Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers and/or roll-forwards of Accounts and Inventory through the date of closing Closing Date and test counts of the Inventory in a manner reasonably satisfactory to the Administrative Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable the Administrative Agent to accurately identify and verify the Collateral), the results of which which, in each case described in the preceding subclauses (A) and (B), shall be reasonably satisfactory to Agent, not more than seven the Administrative Agent in all material respects; and
(7ii) Business Days prior (A) a bring-down field exam with respect to the date hereof or such earlier date as Agent may agree;
(f) Agent shall have received, Collateral in form and substance substance, and with results, reasonably satisfactory to Agent, the Administrative Agent in all material respects and (iB) an opening pro-forma balance sheet of Parent and its Subsidiaries (on a consolidated basis), reflecting the transactions contemplated hereby and (ii) the Disclosure Letter attaching the projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a monthly basis for the period through the end of the 2009 Fiscal Year and thereafter, on an annual basis for each Fiscal Year through the end of the 2012 Fiscal Year, in each case with the results and assumptions set forth in all of such projections in form and substance reasonably satisfactory to Agent;
(g) Agent shall have received a certificate signed by the chief executive officer or chief financial officer of Administrative Borrower, in form and substance satisfactory to Agent, attaching 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, initial Borrowing Base Certificate including, without limitationinter alia, Collateral Access Agreements (other than from the lessors of retail store locations) and Credit Card Acknowledgments;
(h) Adjusted calculations demonstrating that Excess Availability as determined by Agent, as of the Closing Date, shall be Date is not less than $12,000,000 300,000,000, in each case, after giving pro forma effect to the Plan payment of Reorganization, fees and expenses of the transactions contemplated by this Agreement to occur on the Closing Date and the initial Loans made or to be made, the made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder, the incurrence of the Specified Subordinated Indebtedness, and the payment of all trade payables and expenses and liabilities of Borrowers in the ordinary course of business;
(i) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral;
(j) Agent shall have received and reviewed lien search results for each Borrower and Guarantor in such jurisdictions as Agent shall request, which search results shall be in form and substance satisfactory to Agent;
(k) Agent shall have received environmental audits of the Baldwyn Real Property conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology reasonably satisfactory to Agent, the results of which shall be satisfactory to Agent;
(l) Agent shall have received, in form and substance reasonably satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) insuring the priority, amount and sufficiency of the Closing Date Mortgaged Property, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests;
(m) Agent shall have received originals of the shares of the stock certificates (if any) representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(n) Agent shall have received a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the date hereof as completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(o) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(p) Agent shall have received a written appraisal as to the Inventory of Borrowers and Guarantors and the Baldwyn Real Property, in each case by an appraiser acceptable to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(q) no material pending or threatened, litigation, proceeding, bankruptcy (other than the Reorganization Cases) or insolvency, injunction, order or claims with respect to Borrowers and Guarantors shall exist;
(r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing;
(s) Agent shall have received, in form and substance reasonably satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the Financing Agreements and such other matters as Agent may request;
(t) Agent shall have received the audited financial statements of Borrowers and their Subsidiaries for the Fiscal Year ended February 2, 2008, and such financial statements shall be in form and substance reasonably satisfactory to Agent;
(u) Agent shall have received satisfactory background and reference checks on (i) each Borrower and each Guarantor and (ii) the chief executive officer, chief financial officer, chief operating officer and each other officer and director of each Borrower and each Guarantor, in each case, as determined by the Agent, and the Borrowers and the Guarantors shall have delivered all such documents and instruments necessary to effectuate such background and reference checks;
(v) Agent shall have received evidence satisfactory to Agent that Borrowers shall have received the Specified Subordinated Indebtedness, together with copies, certified by the chief executive officer or chief financial officer of the Administrative Borrower of all Specified Subordinated Indebtedness Documents. The terms of the Specified Subordinated Indebtedness and the Specified Subordinated Indebtedness Documents shall be reasonably acceptable to Agent, including, without limitation, with respect to payment subordination and blockage, remedy standstill periods, cross-default provisions and agreement not to contest the Obligations and the liens granted to Agent under the Financing Agreements, and the Obligations arising under the Financing Agreements and the liens granted to Agent under the Financing Agreements shall be senior and first in priority, as applicable, in all respects;
(w) all motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this Agreement and the Plan of Reorganization and the approval hereof and thereof shall be satisfactory in form and substance to Agent. All service and notice requirements in connection this Agreement and the Plan of Reorganization shall have been timely complied with and such requirements have been fulfilled in accordance with all applicable laws and rules. A Final Order confirming the Plan of Reorganization in form and substance acceptable to Agent (the “Confirmation Order”) shall have been entered in the Reorganization Cases, which order shall not have been subject to injunction, stayed, modified, appealed, reversed or otherwise affected;
(x) Borrowers’ Plan of Reorganization, as confirmed, shall be in form and substance satisfactory to Agent, including, without limitation, providing for the discharge of all Indebtedness and other claims against the Borrowers existing as of the Petition Date, the termination of all commitments relating thereto, and the termination, release and discharge of all liens or security interests granted thereunder (other than Permitted Liens), in each case on terms satisfactory to the Agent. The Bankruptcy Court shall have approved any amendments or modifications to the Plan of Reorganization and entered any and all related orders requested or approved by Agent in connection therewith, and no other amendments or modifications thereto shall have occurred except as shall have been consented to by Agent or the Required Lenders, as appropriate. All conditions precedent to the Effective Date (as defined in the Plan of Reorganization) of the Plan of Reorganization shall have been met (or the Agent shall have granted its prior written consent to a waiver thereof) and the Effective Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial Loans under this Agreement to be made on the Closing Date. The Confirmation Order shall be a Final Order and shall not have been reversed, modified, amended, subject to injunction, or stayed, shall be in full force and effect, and, unless otherwise agreed by Agent, all appeal periods relating to the Confirmation Order shall have expired, and, unless otherwise agreed by Agent, no appeals from the Confirmation Order shall be outstanding. Except with the prior written consent of the Agent, the Bankruptcy Court’s retention of jurisdiction under the Final Order confirming the Plan of Reorganization shall not extend to nor govern the enforcement of the Financing Agreements from and after the Closing Date, or any rights or remedies relating thereto;
(y) Agent shall have completed its legal due diligence with results reasonably satisfactory to Agent (including without limitation Agent’s reasonable satisfactory with any previously undisclosed issues of a business nature that arise in connection with the legal due diligence) for which Agent previously did not have actual knowledge of such issues prior to the date the Commitment Letter dated as of April 8, 2008 having been executed and which such issues affect any Borrower or any of its Subsidiaries or the Transaction that in the Agent’s reasonable judgment is inconsistent in a material and adverse manner with any such information disclosed to the Agent prior to the date of such Commitment Letter. Without limiting the generality of the foregoing, the corporate structure of the Borrowers and their subsidiaries, documentation evidencing Indebtedness of the Borrowers and their subsidiaries, material contracts and Governing Documents of the Borrowers and their subsidiaries shall be reasonably acceptable to the Agent; and
(z) Agent shall have received an officer’s certificate duly executed by chief executive officer, president, vice president or treasurer of each of the Borrowers and Guarantors certifying and attesting that, as of the Closing Date, (i) no appeal of the Confirmation Order has been filed; (ii) no request for a stay of the Confirmation Order pending appeal has been made; and (iii) the Confirmation Order has not been stayed in any manner.
(aa) Agent shall have received such other documents and instruments reasonably as Agent or its counsel may require or request.
Appears in 1 contract
Samples: Loan and Security Agreement (Mohawk Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Agent and Lenders to make the initial Loans or and of Issuing Bank to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) this Agreement or counterparts hereof shall have been duly executed by, and delivered to, Borrowers, Guarantors, Agent and Lenders; and Agent shall have received such documentsevidence 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, instrumentson 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, agreements and legal opinions 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 reasonably request in connection receive, substantially concurrently with the transactions contemplated by satisfaction of the other conditions precedent set forth in this Agreement 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 other Financing Agreementtransactions provided for therein shall have been consummated, including or substantially concurrently with the initial Loans hereunder shall be consummated, substantially in accordance with the Investment Documents and all those listed material conditions precedent to the consummation of such transactions set forth in the Closing Checklist attached hereto 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 Annex 1executed and delivered by the parties thereto, each which shall be in form and substance reasonably satisfactory to Agent;
(bd) Agent shall have received, in form and substance reasonably satisfactory to Agent, all releasesthe Intercreditor Agreement, terminations duly authorized, executed and such other documents as Agent may request to evidence and effectuate the termination delivered by the Existing Term Loan Agent for itself and on behalf other Term Loan Lenders of their respective financing arrangements with Borrowers and Guarantorsacknowledged by each Borrower and Guarantor;
(ce) all requisite corporate resolutions or equivalent action by Borrowers and proceedings 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 all information and copies of all documents, including such resolutions or records of requisite corporate action and proceedings which equivalent action, certified where requested by Agent may have requested in connection therewith, such documents to be certified or its counsel by appropriate corporate officers or Governmental Authority (of Borrowers and including 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 and such document as herein;
(f) Agent shall set forth the organizational identification number 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, if one is issued in its jurisdiction of incorporation or formation);
(dg) a certificate signed by No material adverse change shall have occurred in the chief executive officerbusiness, chief financial officer, president operations or vice president assets of each Borrower, certifying that Borrowers or Guarantors since February November 2, 2008 and no change or event has occurred, that alone shall have occurred which would impair in any material respect the ability of any Borrower or together with Guarantor to perform its payment obligations hereunder or under any of the other events, could reasonably be expected Financing Agreements to have which it is a Material Adverse Effectparty or of Agent to enforce the Obligations or realize upon the Collateral for itself and for the benefit of the Secured Parties;
(eh) Agent shall have completed a an updated field review of the Records and such other information with respect to the Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner reasonably 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 CollateralInventory), the results of which in each case 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 seven five (75) Business Days prior to the date hereof or such earlier date as Agent may agree;
(fi) Agent shall have receivedreceived all consents, waivers, acknowledgments and other agreements (other than Collateral Access Agreements), in form and substance reasonably satisfactory to Agent, (i) an opening pro-forma balance sheet of Parent and its Subsidiaries (on a consolidated basis), reflecting the transactions contemplated hereby and (ii) the Disclosure Letter attaching the projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a monthly basis for the period through the end of the 2009 Fiscal Year and thereafter, on an annual basis for each Fiscal Year through the end of the 2012 Fiscal Year, in each case with the results and assumptions set forth in all of such projections in form and substance reasonably satisfactory to Agent;
(g) Agent shall have received a certificate signed by the chief executive officer or chief financial officer of Administrative Borrower, in form and substance satisfactory to Agent, attaching 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 the Liens of Agent upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements (other than from the lessors of retail store locations) and Credit Card Acknowledgments;
(h) Adjusted Excess Availability as determined by Agent, as of the Closing Date, shall be not less than $12,000,000 after giving effect to the Plan of Reorganization, the initial Loans made or to be made, the Letters of Credit issued or to be issued in connection with the initial transactions hereunder, the incurrence of the Specified Subordinated Indebtedness, and the payment of all trade payables and expenses and liabilities of Borrowers in the ordinary course of business;
(i) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral;
(j) Agent Borrowers and Guarantors shall have received 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 reviewed lien search results 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 each Borrower a reasonable period thereafter, and Guarantor in such jurisdictions as Agent shall request, which search results shall be in form and substance satisfactory to Agentany event not more than thirty (30) days after the date hereof;
(k) Agent shall have received environmental audits of the Baldwyn Real Property conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology reasonably satisfactory to Agent, the results of which shall be satisfactory to Agent;
(l) 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 valid deposit account as contemplated by Section 6.6 hereof, in each case, duly authorized, executed and effective title insurance policy issued delivered by a company such bank and agent acceptable to Agent: 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) insuring any deposit accounts where the prioritybalance 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 sufficiency 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 Mortgaged Property, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests;shall not exceed $20,000,000.
(m) Agent shall have received originals of the shares of the stock certificates (if any) representing evidence, in form and substance reasonably satisfactory to Agent, that Agent has valid and perfected first priority security interests in all of the issued Working Capital Priority Collateral (as defined in the Intercreditor Agreement) and outstanding shares valid, perfected second priority security interests in all of the Capital Stock of each Borrower and Guarantor Term Loan Priority Collateral (other than Parent) and owned by any Borrower or Guarantorto 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 together with stock powers duly executed of Working Capital Priority Collateral (as defined in blank with respect theretothe 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;
(oq) 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;
(p) Agent shall have received a written appraisal as to the Inventory of Borrowers and Guarantors and the Baldwyn Real Property, in each case by an appraiser acceptable to Agent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(q) no material pending or threatened, litigation, proceeding, bankruptcy (other than the Reorganization Cases) or insolvency, injunction, order or claims with respect to Borrowers and Guarantors shall exist;
(r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing;
(s) Agent shall have received, each in form and substance reasonably satisfactory to Agent, such the following opinion letters of counsel counsel(s) to Borrowers and Guarantors with respect 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 Financing Agreements and such other matters extent received by the Term Loan Agent as Agent may requestof the Closing Date, the executed legal opinion of counsel to the owner of the Real Property subject to a Mortgage;
(t) Agent 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 audited financial statements of Borrowers and their Subsidiaries for Transaction on or prior to the Fiscal Year ended February 2Closing Date, 2008, and such financial statements shall be including the fees referred to in form and substance reasonably satisfactory to Agent;Section 3.2; and
(u) Agent shall have received satisfactory background and reference checks on (i) each Borrower and each Guarantor and (ii) the chief executive officer, chief financial officer, chief operating officer and each other officer and director of each Borrower and each Guarantor, in each case, as determined by the Agent, and the Borrowers and the Guarantors shall have delivered all such documents and instruments necessary to effectuate such background and reference checks;
(v) Agent shall have received evidence satisfactory to Agent that Borrowers shall have received the Specified Subordinated Indebtedness, together with copies, certified by the chief executive officer or chief financial officer of the Administrative Borrower of all Specified Subordinated Indebtedness Documents. The terms of the Specified Subordinated Indebtedness and the Specified Subordinated Indebtedness Documents shall be reasonably acceptable to Agent, including, without limitation, with respect to payment subordination and blockage, remedy standstill periods, cross-default provisions and agreement not to contest the Obligations and the liens granted to Agent under the Financing Agreements, and the Obligations arising under the Financing Agreements and the liens granted to Agent under the Financing Agreements shall be senior and first in priority, as applicable, in all respects;
(w) all motions and other documents to be filed with executed and submitted to the Bankruptcy Court in connection with this Agreement and the Plan of Reorganization and the approval hereof and thereof shall be satisfactory in form and substance to Agent. All service and notice requirements in connection this Agreement and the Plan of Reorganization shall have been timely complied with and such requirements have been fulfilled in accordance with all applicable laws and rules. A Final Order confirming the Plan of Reorganization in form and substance acceptable to Agent (the “Confirmation Order”) shall have been entered in the Reorganization Cases, which order shall not have been subject to injunction, stayed, modified, appealed, reversed or otherwise affected;
(x) Borrowers’ Plan of Reorganization, as confirmed, shall be in form and substance satisfactory to Agent, including, without limitation, providing for the discharge of all Indebtedness and other claims against the Borrowers existing as of the Petition Date, the termination of all commitments relating thereto, and the termination, release and discharge of all liens or security interests granted thereunder (other than Permitted Liens), in each case on terms satisfactory to the Agent. The Bankruptcy Court shall have approved any amendments or modifications to the Plan of Reorganization and entered any and all related orders requested or approved by Agent in connection therewith, and no other amendments or modifications thereto shall have occurred except as shall have been consented to by Agent or the Required Lenders, as appropriate. All conditions precedent to the Effective Date (as defined in the Plan of Reorganization) of the Plan of Reorganization shall have been met (or the Agent shall have granted its prior written consent to a waiver thereof) and the Effective Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial Loans under this Agreement to be made delivered on the Closing Date. The Confirmation Order shall be a Final Order and shall not have been reversed, modified, amended, subject to injunction, or stayed, shall be in full force and effect, and, unless otherwise agreed by Agent, all appeal periods relating to the Confirmation Order shall have expired, and, unless otherwise agreed by Agent, no appeals from the Confirmation Order shall be outstanding. Except with the prior written consent of the Agent, the Bankruptcy Court’s retention of jurisdiction under the Final Order confirming the Plan of Reorganization shall not extend to nor govern the enforcement of the Financing Agreements from and after the Closing Date, or any rights or remedies relating thereto;
(y) Agent shall have completed its legal due diligence with results reasonably satisfactory to Agent (including without limitation Agent’s reasonable satisfactory with any previously undisclosed issues of a business nature that arise in connection with the legal due diligence) for which Agent previously did not have actual knowledge of such issues prior to the date the Commitment Letter dated Date as of April 8, 2008 having been duly executed and which such issues affect any Borrower or any of its Subsidiaries or delivered by the Transaction that in the parties thereto to Agent’s reasonable judgment is inconsistent in a material and adverse manner with any such information disclosed to the Agent prior to the date of such Commitment Letter. Without limiting the generality of the foregoingprovisions of Section 14.3 for purposes of determining compliance with the conditions specified in this Section 4.1, the corporate structure of the Borrowers and their subsidiaries, documentation evidencing Indebtedness of the Borrowers and their subsidiaries, material contracts and Governing Documents of the Borrowers and their subsidiaries each Lender that has signed this Agreement shall be reasonably 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 the Agent; and
(z) a Lender unless Agent shall have received notice from such Lender prior to the date hereof specifying its objection thereto. The execution and delivery hereof by Lenders hereunder shall conclusively be deemed to constitute an officer’s certificate duly executed acknowledgment by chief executive officer, president, vice president or treasurer of Agent and each Lender that each of the Borrowers and Guarantors certifying and attesting that, as of the Closing Date, (i) no appeal of the Confirmation Order has been filed; (ii) no request for a stay of the Confirmation Order pending appeal has been made; and (iii) the Confirmation Order has not been stayed conditions precedent set forth in any manner.
(aa) Agent this Section 4.1 shall have received been satisfied in accordance with its respective terms or shall have been irrevocably waived by such other documents and instruments reasonably as Agent or its counsel may require or requestPerson.
Appears in 1 contract
Samples: Loan and Security Agreement (Nci Building Systems Inc)
