Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of the applicable Issuing 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) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents required to be delivered hereunder, in each case conforming to the requirements 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 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 of the Existing Facility, 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 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 Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and 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), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each 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 whole, since December 31, 2008; (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 and/or roll-forwards of Accounts and Inventory through the Closing Date and test counts of the Inventory in a manner 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, in each case described in the preceding subclauses (A) and (B), shall be reasonably satisfactory to the Administrative Agent in all material respects; and (ii) (A) a bring-down field exam with respect to the Collateral in form and substance, and with results, reasonably satisfactory to the Administrative Agent in all material respects and (B) an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $300,000,000, in each case, after giving pro forma effect to the payment of 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 and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
Appears in 1 contract
Samples: Loan and Security Agreement (Mohawk Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of the following is a condition precedent to Agent and Lenders to make making the initial Loans or of the applicable Issuing Banks to issue and providing the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedenthereunder:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents required to be delivered hereunder, in each case conforming to the requirements 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 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 of the Existing Facility, including, but not limited to, a payoff letter for the Existing Facility;
(c) all requisite corporate action and proceedings in connection with the transactions contemplated by this Agreement and the other Loan Documents Financing Agreements shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may have 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 Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and 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), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated thereby)Authorities;
(db) no material adverse change or material adverse effect, in either case, shall have occurred in the businessassets, operations, business or financial condition, liabilities (whether actual or contingent) or properties condition of the Borrowers and their Subsidiaries, taken as a whole, since December 31, 2008the date of Agent's latest field examination and no change or event shall have occurred which would impair the ability of Borrowers or any Obligor to perform their obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent to enforce the Obligations or realize upon the Collateral;
(ec) 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, including current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the Closing Date date of closing and test counts of the Inventory in a manner 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 whichwhich in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the date hereof;
(d) Agent shall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(e) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $8,500,000 after giving effect to the Purchase Agreements and the transactions contemplated thereunder;
(f) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and each bank where such Borrower has a deposit account, in each case described case, duly authorized, executed and delivered by such bank and such Borrower (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(g) Agent shall have received and reviewed UCC search results for all jurisdictions in the preceding subclauses (A) United States and (B)Canada which assets of each Borrower and Guarantor are located, which search results shall be reasonably in form and substance satisfactory to the Administrative Agent in all material respects; andAgent;
(iih) Agent shall have received, in form and substance satisfactory to Agent, the Junkfood Subordination Agreement, the Soffe Subordination Agreement and the Factor Intercreditor Agreement duly executed and delivered by the parties thereto;
(Ai) Agent shall have received, in form and substance satisfactory to Agent, a bring-down field exam Uniform Commercial Code filing authorization letter, duly executed and delivered by each Borrower and the domestic Subsidiaries of each Borrower, together with appropriate financing statements on Form UCC-1 or Form UCC-3, as applicable, duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect Agent's liens in and to the collateral of such domestic Subsidiaries of Borrower, and Agent shall have received confirmation of the filing of all such financing statements;
(j) Agent shall have received, reviewed and approved the duly executed amendment to the Factor Documents;
(k) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to this Agreement, the other Financing Agreements and the security interests and liens of Agent and Lenders with respect to the Collateral and such other matters as Agent may request;
(l) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substancesubstance satisfactory to Agent, and with resultscertificates of insurance policies and/or endorsements naming Agent as loss payee;
(m) Agent shall have received, reasonably reviewed and approved final copies of the fully executed Junkfood Asset Purchase Agreement, all exhibits and schedules thereto and all other Junkfood Purchase Documents, including the Junkfood Seller Note, and Agent shall have received assurances satisfactory to Agent that the Administrative Junkfood Acquisition has been, or concurrently with the funding of the initial Loans hereunder will be, consummated in accordance with the terms and conditions thereof;
(n) Agent in all material respects shall have completed its legal and business due diligence with respect to Borrowers and Junkfood, including Agent's receipt and review of (i) updated monthly financial projections of Borrowers, including statements of income and cash flows, balance sheets and Excess Availability projections and (Bii) an initial Borrowing Base Certificate includingall third-party due diligence with respect to Borrowers and Junkfood;
(o) Agent shall have received a certificate, inter aliatogether with supporting documentation, calculations demonstrating that Excess Availability as satisfactory to it from one or more knowledgeable senior officers of Borrowers that, at the Closing Date is not less than $300,000,000, in each case, time of and after giving pro forma effect to the payment financing under this Agreement and the Junkfood Acquisition, Borrowers are Solvent;
(p) Agent shall have received, reviewed and found acceptable fully paid endorsements to Agent's mortgagee title insurance policies (or binding commitments to issue endorsements to Agent's mortgagee title insurance policies, marked to Agent's satisfaction to evidence the form of fees such endorsements to be delivered after the Closing Date) with respect to the title insurance policies that insure the Mortgages (other than the Alabama Mortgage and expenses of other than the Mortgage covering Real Property located in Catawba County, North Carolina (the "Catawba County Mortgage")) to create a valid lien on all Real Property subject thereto, which endorsements (and commitments therefor) shall give effect to the transactions contemplated by this Agreement Agreement, shall "down-date" the effective date of the title insurance policy (or policies) to occur on which they relate and shall not have a specific survey exception;
(q) No Default or Event of Default shall exist or have occurred and be continuing under the Closing Date Existing Soffe Loan Agreement; and
(r) the other Financing Agreements and all instruments and documents hereunder, including amendments to the initial Loans made or Mortgages, shall have been duly executed and delivered to be made Agent, in form and Letters of Credit issued or substance satisfactory to be issued in connection with the initial transactions hereunder;Agent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders Lender to make the initial Loans or of the applicable Issuing 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) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents required to be delivered hereunder, in each case conforming to the requirements 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 Lenders;
(b) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative AgentLender, all releases, terminations and such other documents as the Administrative Agent Lender may reasonably request to evidence and effectuate the termination of all liens and security interests upon the Existing FacilityCollateral, including, but not limited to, a payoff letter or any of it except for the Existing Facilitysecurity interes and liens set forth on Schedule 8.4 to the Information Certificate;
(cb) all requisite corporate action and proceedings in connection with this Agreement and the other Loan Documents Financing Agreements shall be satisfactory in form and substance to the Administrative AgentLender, and the Administrative Agent Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent Lender may have requested in connection therewith, such documents where requested by the Administrative Agent Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party Borrower or Guarantor as is set forth herein and certificates of good standing in (i) such document as shall set forth 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), the bylaws or articles organizational identification number of each Loan Party Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since the date of Lender's latest field examination (not including for this purpose the field review referred to in clause (d) below) and resolutions no change or event shall have occurred which would impair the ability of any Borrower or Guarantor to perform its obligations hereunder or under any of the board other Financing Agreements to which it is a party or of directors (Lender to enforce the Obligations or equivalent governing body) of each Loan Party approving and authorizing realize upon the Loan Documents and the transactions contemplated thereby)Collateral;
(d) no material adverse change or material adverse effect, in either case, Lender 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 whole, since December 31, 2008;
(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 Lender may reasonably require to determine the amount of Loans available to the Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the Closing Date date of closing and test counts of the Inventory in a manner satisfactory to the Administrative AgentLender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable the Administrative Agent Lender to accurately identify and verify the Collateral), the results of whichwhich each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree;
(e) Lender shall have received, in each case described form and sub-stance satisfactory to Lender, all consents, waivers, acknowl-edgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the preceding subclauses Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements;
(Af) and (B)the Excess Availability as determined by Lender, as of the date hereof, shall be reasonably satisfactory to the Administrative Agent in all material respects; and
(ii) (A) a bring-down field exam with respect to the Collateral in form and substance, and with results, reasonably satisfactory to the Administrative Agent in all material respects and (B) an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $300,000,000, in each case, 4,000,000 after giving pro forma effect to the payment of 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 and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(g) Lender shall have received, in form and substance satisfactory to Lender, Deposit Account Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Lender shall be the bank’s customer with respect to such deposit account as Lender may specify);
(h) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral;
(i) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, which search results shall be in form and substance satisfactory to Lender;
(j) Intentionally omitted;
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of the following is a condition precedent to Agent and Lenders to make making the initial Loans or of the applicable Issuing Banks to issue and providing the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedenthereunder:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents required to be delivered hereunder, in each case conforming to the requirements 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 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 of the Existing Facility, 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 Loan Documents Financing Agreements shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Administrative Agent may have 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 Loan Party certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Loan Party as is set forth herein and certificates of good standing in (i) such document as shall set forth 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), the bylaws or articles organizational identification number of each Loan Party and resolutions Party, if one is issued in its jurisdiction of the board of directors (or equivalent governing body) of each Loan Party approving and authorizing the Loan Documents and the transactions contemplated therebyincorporation);
(db) no material adverse change or material adverse effect, in either case, Material Adverse Effect shall have occurred in since the business, operations, financial condition, liabilities (whether actual or contingent) or properties date of the Borrowers and their Subsidiaries, taken as a whole, since December 31, 2008Agent’s latest field examination;
(ec) the Administrative Agent shall have received:
(i) (A) an appraisal of the Loan Parties’ Inventory, in form and substance reasonably satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Administrative Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements;
(d) the Excess Availability as determined by Agent; and (B) a completed a field review , as 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 and/or roll-forwards of Accounts and Inventory through the Closing Date and test counts of the Inventory in a manner 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, in each case described in the preceding subclauses (A) and (B)date hereof, shall be reasonably satisfactory to the Administrative Agent in all material respects; and
(ii) (A) a bring-down field exam with respect to the Collateral in form and substance, and with results, reasonably satisfactory to the Administrative Agent in all material respects and (B) an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $300,000,000, in each case, 50,000,000 after giving pro forma effect to the payment of 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 on the date hereof and Letters of Credit issued or to be issued on the date hereof in connection with the initial transactions hereunder;
(e) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral;
Appears in 1 contract
Samples: Loan and Security Agreement (Travelcenters of America LLC)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of the following is a condition precedent to Administrative Agent and Lenders to make making the initial Loans or of the applicable Issuing Banks to issue and providing the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedenthereunder:
(a) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents required to be delivered hereunder, in each case conforming to the requirements 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 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 of the Existing Facility, including, but not limited to, a payoff letter for the Existing Facility;
(c) all requisite corporate and limited liability company action and proceedings (as the case may be) in connection with this Agreement and the other 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 or company 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 officers, managers, members or any Governmental Authority (and including a copy of the certificate of incorporation or formation articles of organization as applicable, of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and 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, Borrower certified by the Secretary of State (or equivalent Governmental Authority), ) which shall set forth the bylaws same complete corporate or articles limited liability company name of such Borrower as is set forth herein and such document as shall set forth the organizational identification number of each Loan Party Borrower, if one is issued in its jurisdiction of incorporation);
(b) Administrative Agent shall have determined that no material adverse change shall have occurred in the assets or business of Borrowers since the date of Administrative Agent's latest examination and resolutions no change or event shall have occurred which would impair in any material respect the ability of the board Borrowers (taken as a whole) or the Obligors to perform their obligations hereunder or under any of directors (or equivalent governing body) of each Loan Party approving and authorizing the other Loan Documents to which they are parties or of Administrative Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(c) Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent, all consents, waivers, acknowledgments and other agreements from third persons which Administrative 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 transactions contemplated thereby)other Loan Documents;
(d) no material adverse change or material adverse effectAdministrative Agent shall have received evidence, in either caseform and substance satisfactory to Administrative Agent, shall that Administrative Agent has or will have occurred a valid perfected first priority security interest in the business, operations, financial condition, liabilities (whether actual or contingent) or properties all of the Borrowers and their SubsidiariesCollateral, taken as a whole, since December 31, 2008subject only to liens permitted under this Agreement;
(e) Administrative Agent shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation and organization of each Borrower (as the case may be), the jurisdiction of the chief executive office of each Borrower and all jurisdictions in which assets of Borrowers are located, which search results shall be in form and substance satisfactory to Administrative Agent;
(f) Administrative Agent shall have received original "Membership Interests Certificates" representing the "Required Value" (as defined in and required under Section 5.1);
(g) 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 , such opinion letters of the Records and such other information counsel to Borrowers with respect to the Collateral Loan Documents and such other matters as the Administrative Agent may reasonably require request; and. 4833-7494-6387.12 45083/0017 03/0202018
(h) the other Loan Documents and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to determine the amount of Loans available to the Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the Closing Date and test counts of the Inventory in a manner 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, in each case described in the preceding subclauses (A) and (B), shall be reasonably satisfactory to the Administrative Agent in all material respects; and
(ii) (A) a bring-down field exam with respect to the Collateral in form and substance, and with results, reasonably substance satisfactory to the Administrative Agent in all material respects and (B) an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $300,000,000, in each case, after giving pro forma effect to the payment of 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 and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;Agent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation At the time of the Lenders to make making of the initial Loans or and issuance of the applicable Issuing Banks to issue the initial Letters of Credit hereunder is subject on the Closing Date, all obligations of Borrower hereunder incurred prior to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter initial Loans and Letters of Credit (including, without limitation, Borrower's obligations to reimburse the reasonable fees and expenses of each of counsel to the following conditions precedentAgent and any fees and expenses payable to the Agent or its Affiliates as previously agreed with Borrower, including without limitation, the fees set forth in the Fee Letter), shall have been paid in full, and the Agent shall have received the following, in form and substance reasonably satisfactory in all respects to the Agent:
(a) the Administrative Agent shall have received (i) duly executed counterparts of this Agreement;
(b) the duly completed Revolving Credit Notes evidencing the Revolving Credit Commitments;
(c) a duly executed Note Assignment and original Intercompany Loan Documents, duly endorsed to the Agent, with respect to each Intercompany Loan existing on the Closing Date;
(d) certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) for the account bylaws of such entities;
(f) certified copies of the certificate or articles of incorporation of each Lender requesting Credit Party certified by the Secretary of State and by the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party and each other jurisdiction where such Credit Party's ownership of property or the conduct of its business require it to be qualified, except where a promissory notefailure to be so qualified would not have a Materially Adverse Effect;
(g) certificate of Borrower in substantially the form of Exhibit D attached hereto and appropriately completed;
(h) the favorable opinion of Alstxx & Xird, a Note counsel to the Credit Parties, in the form of Exhibit E, addressed to the Agent and each of the Lenders;
(iiii) counterparts copies of all other Loan documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and all instruments and the other documents required to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in each case conforming full force and effect and all applicable waiting periods shall have expired;
(j) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the requirements hereunder and thereunder and executed by a duly authorized officer absence of any material liabilities or director of each party thereto or obligations arising from matters relating to employees of the general partner Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(k) certificates, reports, environmental audits and investigations, and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any partnership party theretomaterial liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in each case order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) evidence satisfactory to the Agent and the Lenders that upon the funding of the initial Loans hereunder, the Existing Indebtedness will be paid in full and terminated and that the holders thereof will release all Liens securing the Existing Indebtedness;
(n) a summary, set forth in format and detail reasonably acceptable to the Agent, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(o) evidence assuring the Agent and the Lenders that all corporate proceedings and all other legal matters relating to the Credit Parties in connection with the authorization, legality, validity and enforceability of the Credit Documents are in form and substance reasonably satisfactory to the Lenders;
(bp) review of the Administrative Agent subordination provisions in all Subordinated Debt of the Borrower shall have received, been completed and such provisions shall be 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 of the Existing Facility, 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 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 Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and 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), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each 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 whole, since December 31, 2008;
(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 and/or roll-forwards of Accounts and Inventory through the Closing Date and test counts of the Inventory in a manner 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, in each case described in the preceding subclauses (A) and (B), shall be reasonably satisfactory to the Administrative Agent in all material respectsLenders; and
(ii) (Aq) a bring-down field exam with respect to the Collateral in form and substance, and with results, reasonably satisfactory to the Administrative Agent in all material respects and (B) an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as certified copy of the Closing Date is not less than $300,000,000, in each case, after giving pro forma effect to Seller Note and the payment of fees documents governing the same and expenses the documents governing the issuance of the transactions contemplated by this Agreement to occur on the Closing Date and the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;Buyer Note.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders Banks to make the initial Loans or of the applicable Issuing Banks and to issue the initial Letters Letter of Credit hereunder is shall be subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each fulfillment of the following conditions precedentprecedent on or before the Closing Date in a manner satisfactory to the Banks:
(a) the Administrative Agent Each Bank shall have received the following:
(i) counterparts A copy of resolutions approving this AgreementAgreement and authorizing the transactions contemplated in this Agreement and the other Loan Papers, duly adopted by the Board of Directors of each of the Companies, accompanied by a certificate of the Secretary or Assistant Secretary of the respective Company, dated the date hereof, that such copy is a true and correct copy of resolutions duly adopted at a meeting (which may be held if permitted by applicable Law and, if required by such Law, by the bylaws of the respective Company, by conference telephone or similar communications equipment by means of which all persons participating in a meeting can hear each other) of, or by the unanimous written consent of (if permitted by applicable Law and, if required by such Law, by the bylaws of the respective Company),the Board of Directors of the respective Company, and that such resolutions have not been amended, modified, repealed, or revoked in any respect, and are in full force and effect as of the date hereof:
(ii) for A certificate of incumbency of all officers of Borrower and each Company who will be authorized to execute or attest this Agreement or any document delivered pursuant hereto on behalf of Borrower or such Company, dated the account date hereof; executed by the Secretary or Assistant Secretary of each Lender requesting a promissory note, a Note and Borrower or such Company.
(iii) counterparts The articles of all other Loan Documents incorporation of Borrower and all instruments each Company certified by the Secretary of State of the state of its incorporation and documents dated a current date.
(iv) The bylaws of Borrower and each Company certified by its Secretary or Assistant Secretary.
(v) Certificates of the appropriate government officials of the state of incorporation of Borrower and each Company as to its existence and, to the extent applicable, good standing and certificates of the appropriate government officials of each state in which Borrower and each Company is required to qualify to do business and where failure to so qualify could reasonably be delivered hereunderexpected to have a Material Adverse Effect, as to such Person’s qualification to do business and good standing in each case conforming to the requirements hereunder and thereunder and such state, all dated a current date.
(vi) Its Revolving Credit Note duly 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 Lenders;Borrower.
(bvii) the Administrative Agent shall have receivedA Guaranty Agreement (or ratification thereof, if applicable), in form and substance satisfactory to the Administrative AgentRequired Banks, all releases, terminations appropriately executed and such delivered by each of the Companies other than Borrower.
(viii) The fees due on the Closing Date in accordance with this Agreement.
(ix) Such other documents as the Administrative Agent or any Bank may reasonably request to evidence request.
(b) The representations and effectuate warranties contained in Article IV of this Agreement shall be true and correct in all material respects on and as of such date with the termination same effect as if made on and as of the Existing Facility, including, but not limited to, a payoff letter for the Existing Facility;such date.
(c) No Default or Potential Default, shall be in existence on such date or after giving effect to such initial Loans or Letter of Credit.
(d) All corporate and legal proceedings and all requisite corporate action documents required to be completed and proceedings executed by the provisions of, and all instruments to be executed in connection with the transactions contemplated by this Agreement and the other Loan Documents any related agreements shall be satisfactory in form and substance to Administrative Agent and the Administrative AgentRequired Banks, and the Administrative Agent and the Banks shall have received all information and copies of all documents, including records of requisite corporate action proceedings, required by this Agreement and proceedings any related agreements to be executed or which the Administrative Agent or any Bank may reasonably have requested in connection therewith, such documents documents, where requested by the Administrative Agent or its counsel appropriate, to be certified by appropriate proper corporate officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and 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), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each 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 whole, since December 31, 2008;governmental authorities.
(e) the Administrative Agent No legal proceeding shall be pending or threatened against Borrower or any other Company by or before any, Tribunal which could reasonably be expected to have received:a Material Adverse Effect.
(if) (A) an appraisal The consummation of the Loan Parties’ Inventory, in form and substance reasonably satisfactory to the Administrative Agent; and (B) a completed a field review such Loans or issuance 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 and/or roll-forwards of Accounts and Inventory through the Closing Date and test counts of the Inventory in a manner 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, in each case described in the preceding subclauses (A) and (B), shall be reasonably satisfactory to the Administrative Agent in all material respects; and
(ii) (A) a bring-down field exam with respect to the Collateral in form and substance, and with results, reasonably satisfactory to the Administrative Agent in all material respects and (B) an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $300,000,000, in each case, after giving pro forma effect to the payment of 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 and Letters Letter of Credit issued or to be issued in connection with the initial transactions hereunder;shall not violate any applicable provision of any Law.
Appears in 1 contract
Samples: Credit Agreement (Frozen Food Express Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of the Lenders to make the initial Loans or of the applicable Issuing 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) the Administrative Agent shall have received (i) counterparts of this Agreement, (ii) for the account of each Lender requesting a promissory note, a Note and (iii) counterparts of all other Loan Documents and all instruments and documents required to be delivered hereunder, in each case conforming to the requirements 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 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 of the Existing Facility, 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 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 Loan Party which shall set forth the same complete corporate name of such Loan Party as is set forth herein and 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), the bylaws or articles of each Loan Party and resolutions of the board of directors (or equivalent governing body) of each 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 whole, since December 31, 2008;
(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 and/or roll-forwards of Accounts and Inventory through the Closing Date and test counts of the Inventory in a manner 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, in each case described in the preceding subclauses (A) and (B), shall be reasonably satisfactory to the Administrative Agent in all material respects; and
(ii) (A) a bring-down field exam with respect to the Collateral in form and substance, and with results, reasonably satisfactory to the Administrative Agent in all material respects and (B) an initial Borrowing Base Certificate including, inter alia, calculations demonstrating that Excess Availability as of the Closing Date is not less than $300,000,000, in each case, after giving pro forma effect to the payment of 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 and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(f) 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 will have a valid perfected first priority 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;
(i) the Administrative Agent shall have received and reviewed Lien and judgment search results for the jurisdiction of organization of each Loan Party and the jurisdiction of the chief executive office of each Loan Party, which search results shall be in form and substance satisfactory to the Administrative Agent;
(j) the Administrative Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent;
(k) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, an opinion letter of legal counsel to the Loan Parties, with respect to the Loan Parties, which such opinions shall permit reliance by successors and permitted assigns of each of the Administrative Agent and the Lenders;
(l) the Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to the Administrative Agent, executed by the 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 Agent shall have received an executed Notice of Account Designation;
(n) the Administrative Agent shall have received, in form and substance reasonably satisfactory thereto, financial projections prepared by management of the Company and its Subsidiaries, which will be quarterly for the 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 have received, in form and substance reasonably 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 the 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, the identity of each Loan Party, the name and address of each Loan Party and other information requested by the Administrative Agent that will allow the Administrative Agent or any Lender, as applicable, to identify each Loan Party in accordance with the Act, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders;
(r) the Administrative Agent shall have received a sources and uses table accompanied by payment instructions;
(s) all 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 and legal matters in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to the Administrative Agent and its counsel. The Administrative Agent shall notify the Administrative Borrower and the Lenders that the conditions specified in Section 5.1 have been satisfied or waived and that the Closing Date has occurred, and such notice, absent manifest error, shall be conclusive and binding.
Appears in 1 contract
Samples: Loan and Security Agreement (Mohawk Industries Inc)
