Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied: (a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof. (b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens. (c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent. (d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents. (e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent. (g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification. (h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent. (i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008. (j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group). (k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date. (l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion. (m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor. (n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 3 contracts
Samples: Loan and Security Agreement (Headwaters Inc), Loan and Security Agreement (Headwaters Inc), Loan and Security Agreement (Headwaters Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, The Lenders shall not be required to fund any the requested Loan, issue any Letter of Credit, Loans or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions (except to the extent that such conditions are permitted by each Lender to be satisfied on a post-closing basis pursuant to a post-closing agreement) has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Each Lender that requests issuance of a NoteNote shall have received a Note executed by the Borrowers and delivered to each such Lender. Each other Loan Document shall have been duly executed and delivered to Agent the Lenders by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent The Lenders shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Lienssearches.
(c) Agent The Lenders shall have received duly fully-executed account control agreements establishing for each Dominion Deposit Account (as defined in the Revolver Agreement) and related lockboxSecurities Account (as defined in the Revolver Agreement) (other than the Deposit Accounts at Bank of America, N.A. and JPMorgan Chase Bank, N.A. for which account control agreements shall be delivered pursuant to Section 9.1.16) subject to the “control” (for purposes of the UCC) of the Revolving Credit Agent and, upon the termination of the Revolver Agreement, the Collateral Agent, each in form and substance, and with financial institutions, substance reasonably satisfactory to the Collateral Agent.
(d) Agent The Lenders shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Responsible Officer of each Borrower Representative certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower each Obligor is Solvent; (ii) no Default or Event of Default existsexists or would result from this Agreement or other Loan Documents becoming effective in accordance with its or their respective terms; (iii) the representations and warranties set forth in Section 9 8 are true and correctcorrect in all respects; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent The Lenders shall have received a certificate of a duly authorized officer of each ObligorBorrower, certifying (i) that attached copies of such ObligorBorrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; , (ii) that an attached copy of resolutions (to the extent necessary under Applicable Law or applicable Organic Documents) authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; , and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent The Lenders may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent The Lenders shall have received copies of the charter documents of each Obligor, certified as appropriate by the Secretary of State or other appropriate another official of such Obligor’s jurisdiction of organization. Agent The Lenders shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where organization.
(g) The Lenders shall have received an opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrowers, as to such Obligor’s conduct of business or ownership of Property necessitates qualificationmatters as the Collateral Agent may reasonably request.
(h) Agent The Lenders shall have received copies a copy of policies or certificates of insurance for the insurance policies carried by Borrowers, all financial statements and the financial projections described in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to AgentSection 8.1.7 hereof.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008[Intentionally omitted.]
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees fees, costs and expenses which are payable pursuant to be paid the terms hereof to Agent and Lenders on the Closing Date.
(lk) The Intercreditor Agreement Collateral Agent shall have been duly executed and delivered to Agent by received Lien Waivers, each of the signatories thereto, and be in form and substance reasonably satisfactory to each Lender the Collateral Agent, as it may request, in their sole discretionrespect of (a) the following locations: (i) 000 Xxxxx Xxxxxxxxxx Xxxx, Xx. Xxxxxx, Utah 84770, and (ii) 13085, 13039 and 00000 Xxxx Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxx, Xxxxxxxxxx, and (b) the imported goods that Xxxxxxxxxx International Service has been engaged by the Borrowers to facilitate the import of.
(m1) Agent The Lenders shall have received a listing of evidence that (i) the Borrowers’ Account Debtors, including Term A Loans under this Agreement have been designated as “Additional Priority Permitted Debt” under the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit2009 Debenture Intercreditor Agreement, and (ii) the payment by Borrowers of all fees and expenses incurred in connection herewith Term B Loans under this Agreement have been designated as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000“Additional Priority Permitted Debt” under the 2009 Debenture Intercreditor Agreement.
Appears in 3 contracts
Samples: Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.)
Conditions Precedent to Initial Loans. In addition The Borrower shall execute and deliver, or cause to be executed and delivered, to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of Bank the following conditions has been satisfieddescribed documents:
(a) Notes In connection with and as a condition precedent to the Bank’s obligation to make initial advances under the Line of Credit or otherwise extend any credit accommodations hereunder, the Borrower shall have been executed by Borrowers execute and delivered deliver to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly the Bank, or cause to be executed and delivered to Agent by the Bank, the following documents and instruments, each of the signatories thereto, and each Obligor which shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to the Bank (and the Bank shall have no obligation to make initial advances under the Line of Credit or otherwise extend any credit accommodations hereunder until each Lender of said documents and instruments are so executed and delivered to the Bank):
(i) This Agreement;
(ii) The Revolving Note;
(iii) A Guaranty Agreement, duly executed by each of the Guarantors, pursuant to which the Guarantors shall guarantee the prompt payment and performance by the Borrower of its obligations hereunder (collectively, the “Guaranty Agreement”);
(iv) A Stock Pledge Agreement, duly executed by the Company, pursuant to which the Company shall pledge to the Bank, as collateral security for the Borrower’s obligations to the Bank hereunder, a security interest in their sole discretionsixty-five percent (65%) of any and all issued and outstanding shares of stock of Fossil Europe B.V. and Fossil (East) Limited, whether now or hereafter issued by such subsidiaries of the Company (the “Stock Pledge Agreement”); and
(v) Ordinary and customary certificates and documents satisfactory to the Bank and its counsel.
(mb) Agent shall have received a listing of In connection with the Borrowers’ Account Debtors, including the name and address Bank’s issuance of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters Documentary or Stand-by Letter of Credit, the Borrower shall, in addition to the documents required in Section 9(a) above, execute and deliver to the payment Bank a Letter of Credit Application and Agreement (herein so called), provided the Bank shall have no obligation to issue a Documentary or Stand-by Borrowers Letter of all fees Credit for the account of the Borrower until a Letter of Credit Application and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000Agreement has been executed by the Borrower and delivered to the Bank.
Appears in 2 contracts
Samples: Loan Agreement (Fossil Inc), Loan Agreement (Fossil Inc)
Conditions Precedent to Initial Loans. In addition The amendment and restatement of the Existing Agreement pursuant to the conditions set forth in Section 6.2, Lenders terms hereof shall not be required subject to fund any requested Loan, issue any Letter satisfaction of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:(except to the extent that such conditions are permitted by each Lender to be satisfied on a post-closing basis pursuant to a post-closing agreement) (the date such conditions are satisfied or waived, the “Closing Date”):
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent the Lenders by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Collateral Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Collateral Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Collateral Agent shall have received duly executed deposit account control agreements establishing each Dominion Account with respect to certain Deposit Accounts and related lockboxlockbox and Securities Accounts constituting Collateral, in form and substancesubstance reasonably satisfactory to Agent, and with financial institutions, reasonably satisfactory to Agent.
(d) Agent The Lenders shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Responsible Officer of each Borrower Representative certifying that, after giving effect to the initial Loans and transactions hereunder, that (i) such Borrower each Obligor is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 8 are true and correctcorrect in all material respects; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent The Lenders shall have received a certificate of a duly authorized officer of each ObligorBorrower, certifying (i) that attached copies of such ObligorBorrower’s Organic Documents are true and complete, and in full force and effect, without amendment except expect as shown; , (ii) that an attached copy of resolutions (to the extent necessary under Applicable Law or applicable Organic Documents) authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; , and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent The Lenders may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent The Lenders shall have received copies of the charter documents of each Obligor, certified as appropriate by the Secretary of State or other appropriate another official of such Obligor’s jurisdiction of organization. Agent The Lenders shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(hg) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, assets, properties, liabilities, financial condition or prospects of any Obligor shall have occurred since January 29, 2011.
(h) No action, suit, investigation, litigation or proceeding shall have been pending or threatened in any court or before any arbitrator or governmental instrumentality that in Collateral Agent’s judgment (i) could reasonably be expected to have a material adverse effect on Borrowers’ business, operations, Propertiesproperties, prospects or condition (financial or otherwise) of any Obligor or in could materially and adversely impair Borrowers’ ability to perform satisfactorily under this Agreement; or (ii) could reasonably be expected to materially and adversely affect this Agreement or the quality, quantity or value of any Collateral shall have occurred since September 30, 2008transactions contemplated hereby.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all legal fees and expenses to be paid to Agent and Lenders on the Closing Date.
(j) Collateral Agent shall have received (i) a fully-executed payoff letter from BMO, (ii) a fully-executed payoff letter evidencing payment in full of all of the Obligors’ indebtedness to Bank of America, N.A., as agent, and (iii) collateral assignment agreement from the Existing Collateral Agent assigning to Collateral Agent all of the Existing Collateral Agent’s Liens and security interests in the Obligors’ assets.
(k) Lenders shall have received evidence that the Loans under this Agreement have been designated as “Additional Priority Permitted Debt” under the 2009 Indenture.
(l) The Intercreditor Agreement Borrowers shall have been duly executed and delivered to Agent by each received, or shall receive substantially contemporaneously herewith, the proceeds of the signatories theretoRevolver Debt and the Second Lien Debt pursuant to the terms of the Revolver Loan Documents and Second Lien Debt Documents, and as applicable, which shall be in form and substance reasonably satisfactory to each Lender in their sole discretionCollateral Agent.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 2 contracts
Samples: Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until hereunder on the date (“Closing Date”) that , unless each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of received, in proper form for filing or recording, all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens, to the extent requested by Agent.
(c) Agent shall have received all certificates or instruments representing or evidencing all Pledged Interests required by Section 7.4.1 accompanied by all necessary instruments of transfer or assignment, duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agentblank.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower each Borrower, on an individual basis, is Solvent and the Obligors, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 that are qualified by materiality are true and correctcorrect and the representations and warranties set forth in Section 9 that are not qualified by materiality are true and correct in all material respects; and (iv) such Borrower each Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each ObligorObligor (other than an Immaterial Subsidiary), certifying (i) that such Obligor’s Organic Documents have not been modified or the attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received (i) a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPRuskin Moscou Faltischek, as well as P.C. LLP in form and substance satisfactory to Agent and (ii) a written opinion of any local counsel to Borrowers and Parent in Utah and MichiganObligors as Agent may reasonably request, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each ObligorObligor (other than an Immaterial Subsidiary), issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(li) The Intercreditor Jiffy Acquisition shall be consummated in accordance with the Jiffy Purchase Agreement shall have been duly executed and delivered to Agent by each of the signatories theretowithout any amendments, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtorsmodifications, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect waivers or consents thereto that are not reasonably acceptable to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000Agent.
Appears in 2 contracts
Samples: Loan and Security Agreement (P&f Industries Inc), Loan and Security Agreement (P&f Industries Inc)
Conditions Precedent to Initial Loans. In addition The obligation of each Lender to make its extension of credit to be made hereunder on the Closing Date is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, satisfaction (or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”waiver by Agent) that each of the following conditions has been satisfiedprecedent:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockboxreceived, in form and substancesubstance satisfactory to it, (a) a pro forma balance sheet of Borrowers dated as of the date of closing and giving effect to the US Footwear Acquisition, (b) financial projections of Borrowers, giving effect to the US Footwear Acquisition, evidencing Borrowers' ability to comply with Section 10.3, and with (c) interim financial institutionsstatements for Borrowers and the Target as of January 31, satisfactory to Agent2021.
(d) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that after giving pro forma effect to the Loans made hereunder on the Closing Date, the Revolving Loans and other extensions of credit made under the Revolving Loan Facility on the Closing Date and the consummation of the US Footwear Acquisition, (i) EBITDA, for the 12 month period ending on December 31, 2020, using pro forma adjustments satisfactory to Agent, was equal to or greater than $57,500,000 and (ii) the Total Leverage Ratio for Parent and its Subsidiaries, on a consolidated basis, for the 12 month period ending on December 31, 2020, was less than or equal to 3.75:1.0.
(e) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans, the Revolving Loans under the Revolving Loan Facility, the consummation of the US Footwear Acquisition and the transactions hereunder, (i) such Borrower Obligor is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s 's Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person those Person(s) that are authorized to sign to, and have signed, the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxxx & Xxxxxx LLP, as well as any local counsel to Borrowers and Parent in Utah and MichiganObligors or Agent, each in form and substance reasonably satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationfailure to be so qualified would reasonably be expected to result in a Material Adverse Effect.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, all in compliance with the Loan Documents.
(j) Each Obligor shall have provided, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
Agent and each Lender, a duly executed W-9 (i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwisesuch other applicable tax form) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Borrower Agent, interim financial statements not more than 30 and all documentation and other information as Agent or any Lender reasonably requests at least 5 days prior to the Closing Date for: in connection with applicable "know your customer" and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Obligor qualifies as a "legal entity customer" under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Agent and Lenders in relation to such Obligor.
(a) Since December 31, 2019, no Borrower Material Adverse Effect shall have occurred and (b) no Material Adverse Effect (as defined in the Purchase Agreement) shall have occurred.
(l) Upon giving effect to the funding of Loans and the extensions of credit under the Revolving Loan Facility, if any, on the Closing Date, the consummation of all transactions contemplated by the Purchase Agreement, and the payment by the Borrowers of all fees and expenses incurred in connection herewith and therewith, (i) Parent and its Subsidiaries on a consolidated basis; Revolver Usage shall not exceed $80,000,000 and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)Availability shall be at least $20,000,000.
(km) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
Date (l) The Intercreditor Agreement shall have been duly executed including all fees set forth in the Fee Letter and delivered all fees and expenses of legal counsel to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account DebtorAgent).
(n) Agent shall have received evidence satisfactory to it that Borrowers have received all governmental, shareholder and third party consents (including, but not limited to, cl with the Xxxx Xxxxx Xxxxxx Anti-Trust Improvements Act of 1976, as amended) and approvals as may be appropriate in connection with this credit facility, the Term Loan Facility and the transactions contemplated thereby.
(o) Substantially concurrently with (or prior to) the making of the Loans, the US Footwear Acquisition shall be consummated in accordance with the terms and conditions of the Purchase Agreement (including all schedules and exhibits thereto and after giving effect to any amendment, modification, supplement or waiver permitted below), and the Purchase Agreement shall not have been amended or otherwise modified or supplemented or any provision or condition therein waived, if such amendment, modification, supplement or waiver would be materially adverse to the interests of the Agent or Lenders (in their capacities as such), without the prior written consent of the Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood and agreed that (i) any change to the definition of Material Adverse Effect (as defined in the Purchase Agreement) as it relates to the Target shall be deemed to be adverse to the interests of the Agent and Lenders in a material respect, (ii) any reduction in the purchase price set forth in the Purchase Agreement shall not be deemed to be materially adverse to the interests of the Agent or Lenders so long as such reduction is applied on a dollar-for-dollar basis to reduce the aggregate amount of the Revolving Loan Facility, and (iii) any increase in the purchase price set forth in the Purchase Agreement shall be deemed to be not materially adverse to the interests of the Agent or Lenders so long as such purchase price increase is funded entirely with cash proceeds from an additional equity investment).
(p) Substantially concurrently with the borrowing under this Agreement, the Borrowers shall have repaid and terminated all outstanding debt under that certain Revolving Credit, Guaranty, and Security Agreement dated as of February 13, 2019 among certain of the Obligors and The Huntington National Bank (the "Closing Date Refinancing").
(q) Agent shall have received executed copies of the Revolving Loan Documents, together with a certificate of a Senior Officer certifying that each such document is a true, correct, and complete copy thereof.
(r) Agent shall have received a Borrowing Base Certificate prepared as of March 15, 2021, which may reflect the amount of the "deemed Borrowing Base," but shall otherwise conform to the definition of Borrowing Base.
(s) Agent shall have received a fully executed Notice of Borrowing for the Term Loans being advanced on the Closing Date.
(t) No Default or Event of Default exists.
(u) The representations and warranties of each Obligor in the Loan Documents are true and correct in all material respects (or in all respects in the case of any representations and warranties qualified by materiality) on and as of the Closing Date. Upon Date upon giving effect to the initial funding of Loans the Term Loan, except to the extent that such representations and issuance of Letters of Creditwarranties specifically refer to an earlier date, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability which case they shall be at least $20,000,000true and correct in all material respects (or in all respects in the case of any representations and warranties qualified by materiality) as of such earlier date.
Appears in 2 contracts
Samples: Loan and Security Agreement (Rocky Brands, Inc.), Loan and Security Agreement (Rocky Brands, Inc.)
Conditions Precedent to Initial Loans. In addition The obligation of ------------------------------------- the Bank to make its initial Loan is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedprecedent that:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent The Bank shall have received acknowledgments on or before the day of all filings the initial Borrowing the following, each dated prior to or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that of such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesday, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, Bank:
(i) such The Revolving Note issued by the Borrower is Solvent; to the order of the Bank;
(ii) no Default Copies of the Articles, Certificate of Incorporation, partnership agreement or Event other organizational document of Default exists; the Borrower, certified as of a recent date by the Secretary of State of its state of formation or incorporation;
(iii) Copies of the representations and warranties set forth in Section 9 are true and correct; and Bylaws, if any, of the Borrower, certified by the Secretary or an Assistant Secretary of the Borrower;
(iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy Copies of resolutions authorizing execution and delivery of the Loan Documents is true and completeBoard of Directors or other authorizing documents of the Borrower, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.the Bank, approving the Loan Documents and the Borrowings hereunder;
(gv) Agent shall have received copies of the charter documents of each Obligor, certified An incumbency certificate executed by the Secretary or an Assistant Secretary of State the Borrower or equivalent document, certifying the names and signatures of the officers of the Borrower or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by Persons authorized to sign the Secretary of State or Loan Documents and the other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.documents to be delivered hereunder;
(hvi) Agent shall have received Executed copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.;
(ivii) Agent Opinion from Borrower's counsel substantially in the form of Exhibit B hereto;
(b) The Bank shall have completed its due diligence review of the Borrower, and the scope and results thereof shall be satisfactory to Bank in its discretion;
(c) All information previously furnished by Borrower to Bank shall be true and correct in all material respects;
(d) All fees required to be paid at closing shall have been paid;
(e) All corporate and legal proceedings and all instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the Bank and its counsel, and the Bank and such counsel shall have received any and all further information and documents which the Bank or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authorities; and
(f) Nothing shall have occurred and the Bank shall not have become aware of any fact or condition not previously known, which the Bank shall determine has, or could reasonably be expected to have, a material adverse effect on the rights or remedies of the Bank, or on the ability of the Borrower to perform its obligations to the Bank or which has, or could reasonably be expected to have, a materially adverse effect on the performance, business, financial and legal due diligence of Obligorsproperty, including a roll-forward of its previous field examinationassets, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) or prospects of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent Borrower and its Subsidiaries on taken as a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)whole.
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Southwest Water Co), Credit Agreement (Southwest Water Co)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Restatement Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings filings, registrations or recordations necessary to perfect its Liens in the Collateral, as well as UCC UCC, PPSA and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is the Company and its Subsidiaries, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ed) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions (in the case of any UK Guarantor, of both its board of directors and its members) authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing; (iv) with respect to any UK Guarantor, (A) that the Company and each of its Subsidiaries has complied within the relevant timeframe with any notice it has received pursuant to Part 21A of the Companies Axx 0000 from that UK Guarantor; and no “warning notice” or “restrictions notice” (in each case as defined in Schedule 1B of the Companies Act 2006) has been issued in respect of shares in that UK Guarantor and (B) that the attached copy of its “PSC register” (within the meaning of section 790C(10) of the Companies Act 2006) is true and complete, and in full force and effect, without amendment except as shown, and (v) with respect to any UK Guarantor, the solvency of such UK Guarantor and the ability of such UK Guarantor to pay its debts as they fall due.
(fe) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx (i) Gxxxxxxxx Txxxxxx LLP, US counsel to the Obligors, (ii) Sxxxxxx XxXxxxxx, special New Brunswick counsel to the Canadian Guarantor, (iii) Stikeman Elliott LLP, special Ontario counsel to the Canadian Guarantor, and (iv) Norton Rxxx Xxxxxxxxx LLP, special UK counsel to Agent, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory to Agent.
(gf) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates (or their equivalents) for each ObligorObligor (other than the UK Guarantor), issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hg) (If available in the relevant jurisdiction) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, together with loss payable endorsements naming Agent as lenders loss payee and as additional insured (in the case of Canadian insurance policies, first mortgagee (with respect to the ABL Priority Collateral), and in the case of UK Insurance policies, first loss payee), all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ih) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change change, in the good faith opinion of Agent, in the business, operationsassets, Properties, prospects or liabilities, operations, condition (financial or otherwise) of the Borrowers and the Guarantors, taken as a whole, financial condition of any Obligor or in the quality, quantity or value of any Collateral shall have has occurred since September 30December 28, 20082019.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Restatement Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nj) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateOctober 3, 2020. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,0007,000,000.
(k) Agent shall have received reasonably satisfactory evidence that all principal, interest, and other amounts owing in respect of the “Term Debt” (as defined in the Existing Credit Agreement) and all other indebtedness for borrowed money of Obligors (other than indebtedness listed on Schedule 10.2.1 hereto) will be repaid in full on the Restatement Date with the proceeds of the initial Loans hereunder on the Restatement Date and any and all Liens securing such indebtedness will be terminated and released on the Restatement Date.
(l) With respect to each leased property or warehouse of each Obligor, Agent shall have either (i) received a Lien Waiver with respect to such leased property or warehouse or (ii) established a Rent and Charges Reserve with respect to such leased property or warehouse.
(m) Agent shall have received (i) audited financial statements of the Company and its Subsidiaries for the fiscal year ended December 28, 2019, (ii) the internally prepared monthly divisional financial statements of the Company and its Subsidiaries for the months ended January 25, 2020 through August 22, 2020, (iii) a pro forma balance sheet of the Company and its Subsidiaries dated as of the Restatement Date after giving pro forma effect to the transactions contemplated by this Agreement, the repayment in full of existing Debt and the funding of the initial Loans on the Restatement Date and (iv) projections of the consolidated balance sheets, results of operations, cash flow and Availability for the 2020 Fiscal Year on a Fiscal Month basis and for each other Fiscal Year ending prior to the Revolver Termination Date on a Fiscal Year basis.
(n) No action, suit, investigation, litigation or proceeding shall be threatened or pending in any court or before any arbitrator or governmental instrumentality that in Agent’s judgment could reasonably be expected to have a Material Adverse Effect.
(o) Agent shall have received satisfactory evidence that the Obligors have received all governmental and third party consents and approvals as may be appropriate in connection with the Loans and the transactions contemplated by this Agreement.
(p) Agent shall have received the Initial Brand Appraisal which shall indicate that the Brand NOLV, as of the Restatement Date, is equal to or greater than $15,000,000.
Appears in 2 contracts
Samples: Loan and Security Agreement (Summer Infant, Inc.), Loan and Security Agreement (Summer Infant, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.27.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers This Agreement, the Guarantee and delivered to Collateral Agreement, the Perfection Certificate, the Intercreditor Agreement and each Lender that requests issuance of a Note. Each other Loan Document required by the terms hereof to be delivered on the Closing Date shall have been duly executed and copies of executed counterparts of each such Loan Document shall have been delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received a life-of-loan flood hazard determination for all Real Estate owned by an Obligor and, if such Real Estate is located in a special flood hazard area, an acknowledged notice to the applicable Borrower and flood insurance by an insurer acceptable to Agent.
(d) Agent shall have received (i) originals of stock/unit certificates representing 100% (or 65%, as applicable) of the certificated Equity Interests of each Subsidiary that is directly owned by an Obligor, together with stock powers executed in blank and (ii) Issuer Control Agreements for the Equity Interests of each Subsidiary with uncertificated Equity Interests that is directly owned by an Obligor.
(e) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, set forth on Schedule 8.5, in form and substance, and with financial institutions, satisfactory to Agent and duly executed Deposit Account Control Agreements, in form and substance, reasonably satisfactory to Agent.
(df) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower, individually, is, and Borrower is and each of its Subsidiaries on a consolidated basis are, Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(eg) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fh) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP& Xxxx, S.C., as well as any local counsel to Borrowers and Parent Borrower for each jurisdiction in Utah and Michiganwhich an Obligor is organized, in each case, in form and substance reasonably satisfactory to Agent.
(gi) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(hj) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrower, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ik) Agent shall have completed its businessSince December 31, financial and legal due diligence of Obligors2016, including a roll-forward of its previous field examinationthere has been no circumstance, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects event or condition (financial that has or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall could reasonably be expected to have occurred since September 30, 2008a Material Adverse Effect.
(jl) No action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) could reasonably be expected to have a Material Adverse Effect; or (ii) could reasonably be expected to materially and adversely affect the Transactions.
(m) Agent shall have received, each in form and substance satisfactory to Agent, (i) a pro forma balance sheet of Borrower and its Subsidiaries dated as of the Closing Date, (ii) financial projections of Borrower and its Subsidiaries, evidencing Borrower’s ability to comply with the financial covenant set forth in the Loan Documents, and (iii) interim financial statements for Borrower and its Subsidiaries as of a date not more than 30 forty-five (45) days prior to the Closing Date forDate.
(n) Agent shall have received reasonably satisfactory evidence that Borrower has received all governmental and third party consents and approvals as may be appropriate in connection with the Transactions.
(o) Agent shall have completed its customary business, financial, legal, tax, environmental and collateral due diligence, with results reasonably satisfactory to Agent and its counsel. Such due diligence shall include, without limitation, the following: (i) Parent and its Subsidiaries on a consolidated basis; and face to face meetings with management, (ii) Parent review of the Obligors’ books, systems and its Subsidiaries records, (iii) an updated quality of earnings review of the Obligors’ financials by a third party firm reasonably acceptable to Agent with results reasonably satisfactory to Agent (the “Quality of Earnings Report”), (iv) Borrower’s detailed five year business plan with the first two (2) years prepared on a consolidating basis quarterly basis, (but only v) background checks on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Groupkey management, and the Tapco Group)(vi) review of ERISA, regulatory, environmental, intellectual property, litigation, accounting, tax, licensing, certification and permit matters and labor matters, in each case, with results reasonably satisfactory to Agent in its reasonable discretion.
(kp) Borrowers Borrower shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(lq) The Intercreditor Agreement shall have been duly executed and delivered After giving effect on a pro forma basis to Agent by each the funding of the signatories thereto, Term A Loan and be in form any funding of loans and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing issuance of letters of credit under the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of Revolving Loan Agreement on the Closing Date. Upon giving effect to , the initial funding consummation of Loans and issuance of Letters of Credit, the Transactions and the payment by Borrowers Borrower of all fees and expenses incurred in connection herewith with the Transactions, as well as any payables stretched beyond their customary payment practices, (i) Availability shall be at least $20,000,00020,000,000 and (ii) the average daily amount of Revolving Loans for the 365-day period immediately preceding such date shall be not greater than $35,000,000.
(r) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that EBITDA of Borrower and its Subsidiaries (using methodology substantially consistent with the determination of EBITDA in the Quality of Earnings Report, but excluding from the determination of EBITDA the add-back for public company costs and expenses in an amount equal to $1,698,000), for the twelve (12) Fiscal Month period ending on or about February 25, 2017 was equal to or greater than $49,500,000.
(s) After giving pro forma effect to the Loans made hereunder on the Closing Date and the Revolving Loans made by Revolving Loan Lenders on the Closing Date, the Net Senior Leverage Ratio for Borrower and its Subsidiaries, on a consolidated basis, for the four (4) consecutive Fiscal Quarters ending on or about December 31, 2016 shall be less than or equal to 3.35 to 1.00.
(t) Agent shall have received true, correct and complete copies of the Closing Date Revolving Loan Agreement Amendment and the other Revolving Loan Documents, all of which shall be in form and substance reasonably satisfactory to Agent, duly authorized, executed and delivered by the parties thereto and in effect on the Closing Date, and the transactions contemplated by the Revolving Loan Documents shall be consummated simultaneously with the making of the initial Loans hereunder.
(u) Agent shall have received a payoff letter from Existing Agent, in form and substance reasonably satisfactory to Agent, providing that, among other things, all of the Indebtedness of the Obligors under the Existing Loan Documents will be paid and satisfied in full upon Existing Agent’s receipt of the amount set forth therein.
(v) Agent shall have received written instructions from Borrower directing the application of proceeds of the Term A Loan made pursuant to this Agreement.
(w) Agent shall have received an executed Notice of Borrowing.
(x) No Default or Event of Default shall exist at the time of, or result from, such funding, issuance or grant.
(y) The representations and warranties of each Obligor in the Loan Documents shall be true and correct on the date of, and upon giving effect to, the funding of Term A Loan (except for representations and warranties that expressly relate to an earlier date).
(z) A duly executed W-9 (or such other applicable IRS tax form) of the Borrower.
Appears in 2 contracts
Samples: Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Revolver Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers under the Revolver Commitment hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof, including (i) a duly executed Pledge Agreement, along with certificates representing the Pledged Collateral referred to therein accompanied by undated stock powers executed in blank, together with any other documents necessary to create and perfect the security in Equity Interests of the Obligors to the extent required under Section 7.1, (ii) a duly executed Trademark Security Agreement, together with evidence that all actions that Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created thereunder has been taken, including without limitation, filing and recording of such security interests with the appropriate Governmental Authorities, and (iii) a duly executed Release and Termination Agreement.
(b) Agent shall have received the duly executed Parent Guaranty.
(c) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(cd) Agent shall have received certificates and instruments evidencing the Pledged Collateral existing on the Closing Date accompanied by an undated instrument of assignment executed in blank by the applicable Obligor.
(e) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(df) Agent shall have received certificatesa certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, as of the Closing Date (i) such Borrower is the Obligors taken as a whole on a consolidated basis are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower each Obligor has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsDocuments as of the Closing Date (unless waived by Agent).
(eg) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fh) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPSxxxxxx Law Firm, P.C., L.L.O., as well as any local counsel to Borrowers and Parent in Utah and MichiganObligors, each in form and substance reasonably satisfactory to Agent.
(gi) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hj) Agent shall have received true and certified copies of insurance policies or certificates of insurance insurance, as Agent shall request, for each of the insurance policies required to be carried by Borrowers, all Obligors in compliance accordance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(k) To the extent not previously received, Agent shall have received (i) the audited consolidated balance sheet of Parent and Subsidiaries for the Fiscal Year ended December 31, 2007, and the related consolidated statements of income or operations, shareholder’s equity and cash flows for such Fiscal Year, including the notes thereto, (ii) unaudited consolidated financial statements of Parent and Subsidiaries dated as of the last day of the most recently completed month-end for which financial statements are available and the related consolidated financial statements of income or operations, shareholders’ equity and cash flows for the month ending on such date, prepared by management of the Obligors consistent with past practices, and (iii) projections of Parent and the other Obligors, evidencing Borrowers’ ability to comply with the financial covenant set forth in Section 10.3.
(l) No Material Adverse Effect shall have occurred.
(m) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(jn) Agent shall have receivedreceived an appraisal of all Eligible Revenue Equipment, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(ko) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(np) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateSeptember 22, 2008. Upon After giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00020,000,000 on the Closing Date (after giving effect to the Availability Block and all other reserves).
(q) Agent shall be satisfied with the capital structure and Debt of Borrowers and the other Obligors as of the Closing Date and Agent shall have received satisfactory evidence that Borrowers are adequately capitalized, that the fair saleable value of Borrowers’ assets will exceed its liabilities on the Closing Date, and that Borrowers will have sufficient working capital to pay its Debts as they become due.
(r) No action, suit, investigation, litigation or proceeding shall be pending or threatened in writing in any court or before any arbitrator or governmental instrumentality that in Agent’s reasonable business judgment could reasonably be expected to have a Material Adverse Effect.
(s) To the extent not already provided to Agent, Borrowers shall have provided all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the U.S.A. Patriot Act, to the extent such information is requested at least ten (10) Business Days prior to the Closing Date.
(t) Agent shall not have become aware of any material information or other matter not previously known to Agent that in its good faith, reasonable determination is inconsistent in a material and adverse manner with any previous due diligence, information or matter known to Agent, which material information or other matter not previously known to Agent is reasonably likely to have a Material Adverse Effect.
(u) Agent shall have received and delivered to the title company for recording in the applicable recording jurisdiction Mortgages for all Eligible Real Estate.
(v) Agent shall have received the Real Estate Related Documents for all Eligible Real Estate.
Appears in 2 contracts
Samples: Credit Agreement (Covenant Transportation Group Inc), Credit Agreement (Covenant Transportation Group Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers This Agreement, the Guarantee and delivered to Collateral Agreement, the Perfection Certificate, the Intercreditor Agreement and each Lender that requests issuance of a Note. Each other Loan Document required by the terms hereof to be delivered on the Closing Date shall have been duly executed and copies of executed counterparts of each such Loan Document shall have been delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the CollateralCollateral (other than Collateral which may be perfected post-closing in accordance with the terms hereof) (or arrangements satisfactory to Agent for filing financing statements shall have been made), as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received a life-of-loan flood hazard determination for all Real Estate owned by an Obligor and, if such Real Estate is located in a special flood hazard area, an acknowledged notice to the applicable Borrower and flood insurance by an insurer acceptable to Agent.
(d) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, set forth on Schedule 8.5, in form and substance, and with financial institutions, satisfactory to Agent and duly executed Deposit Account Control Agreements, in form and substance, reasonably satisfactory to Agent.
(de) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower Company and each of its Subsidiaries, on a consolidated basis, is Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx Xxxx Xxxxxxx LLP, as well as any local counsel to Borrowers and Parent for each jurisdiction in Utah and Michiganwhich an Obligor is organized, in each case, in form and substance reasonably satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents.
(j) Since April 28, together 2012, there has been no circumstance, event or condition that has or could reasonably be expected to have a material adverse effect on the business, assets, liabilities, operations, or financial condition of Borrowers, taken as a whole (excluding the Bankruptcy Proceedings and any historical events associated with endorsements naming the Bankruptcy Proceedings, and any events that customarily occur as part of a proceeding under Chapter 11 of the Bankruptcy Code).
(k) No action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) could reasonably be expected to have a material adverse effect on the business, assets, liabilities, operations, or financial condition of Obligors, taken as a whole, or could impair the ability of an Obligor to perform its obligations under the Loan Documents; or (ii) could reasonably be expected to materially and adversely affect the Transactions.
(l) Agent as lender loss payee or additional insuredand the Lead Arrangers shall have received, as appropriate, each in form and substance satisfactory to Agent.
Agent and the Lead Arrangers, (i) Agent shall have completed a pro forma balance sheet of Company and its businessSubsidiaries dated as of the Closing Date and giving effect to the effectiveness of the Plan of Reorganization, (ii) financial projections of Company and legal due diligence of Obligorsits Subsidiaries, including a roll-forward of its previous field examination, evidencing Borrowers’ ability to comply with results satisfactory to Agent. No material adverse change the financial covenant set forth in the businessLoan Documents, operations, Properties, prospects or condition and (financial or otherwiseiii) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements for Company and its Subsidiaries as of a date not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)Date.
(km) Agent shall have received reasonably satisfactory evidence that Borrowers have received all governmental and third party consents and approvals as may be appropriate in connection with the Transactions.
(n) Agent and the Lead Arrangers shall have received a final collateral appraisal and field examination addressed or assigned to each of them and upon which each of them are entitled to rely and to share with potential lenders. Such collateral appraisal and field examination shall be, in each case, satisfactory to Agent and the Lead Arrangers.
(o) Borrowers shall have paid all fees and expenses to be paid to Agent Agent, the Lead Arrangers and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(np) Agent shall have received a Borrowing Base Certificate prepared as of the Friday immediately prior to the Closing Date. Upon giving effect to the initial funding of Loans loans and issuance of Letters letters of Creditcredit, the consummation of the Transactions and the payment by Borrowers of all fees and expenses incurred in connection herewith with the Transactions (including but not limited to administrative costs, cure costs, and the funding of cash out options for trade and other unsecured claims but excluding any Delayed Admin Claims), including those payable post-closing, as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00045,000,000. In addition, Agent and the Lead Arrangers shall have received, in form and substance satisfactory to them, a 13-week cash flow statement commencing on the Closing Date and ending 13 weeks thereafter, demonstrating that Availability is not less than $25,000,000 at any time during such 13-week period.
(q) (i) Concurrently with the closing of the Senior Credit Facility, the obligations under each of the DIP Facilities shall have been discharged and satisfied in full, all commitments thereunder shall have been terminated, any unexpired letters of credit issued thereunder shall have been returned or collateralized in accordance with the terms of the Plan of Reorganization and all Liens securing the DIP Facilities shall have been released, and Agent and the Lead Arrangers shall have received (x) a payoff letter to that effect from the administrative agent under each of the DIP Facilities and (y) evidence reasonably satisfactory to it of the termination of all UCC financing statement filings relating to the DIP Facilities and (ii) after consummation of the Plan of Reorganization and giving effect to the Transactions, Obligors shall have no outstanding Indebtedness, contingent liabilities or claims against them, except as expressly contemplated by the Plan of Reorganization and expressly permitted under the Loan Documents.
(r) Company shall have entered into the Term Loan Facility in an amount not to exceed $145,000,000 on terms acceptable to Agent and the Arrangers.
(s) The Confirmation Order shall (i) not have been reversed, vacated, amended, supplemented or otherwise modified in any manner without the written consent of Agent and the Lead Arrangers and (ii) be in full force and effect, unstayed, final and non-appealable and not subject to any appeal, motion to stay, motion for rehearing or reconsideration or a petition for writ of certiorari, unless waived by Agent and the Lead Arrangers in writing in their sole discretion.
(t) Agent shall have received evidence of the Delayed Admin Claims as contemplated by Article III.B.3 of the Plan of Reorganization.
(i) All conditions precedent to the effectiveness of the Plan of Reorganization shall have been or shall substantially concurrently be satisfied or, with the consent of Agent and the Lead Arrangers, waived, (ii) the effective date of the Plan of Reorganization shall have occurred on or before the Closing Date, (iii) the substantial consummation (as defined in Section 1101 of the Bankruptcy Code) of the Plan of Reorganization in accordance with its terms shall occur substantially contemporaneously with the Closing Date and (iv) the Term Loan Documents, the Intercreditor Agreement and all other documents, agreements and instruments necessary to consummate the Plan of Reorganization on the Effective Date (as defined in the Plan of Reorganization) shall, unless consented to by the Lead Arrangers, be consistent with the Plan of Reorganization and with the final engagement letter and term sheet in respect of the Term Loan Agreement reviewed by the Lead Arrangers prior to the date of the Commitment Letter, exclusive of any changes that do not materially adversely affect the interests of Agent or the Lenders in their capacities as such in connection with this Agreement.
(v) Agent and Lenders shall have received all documentation and instruments required by regulatory authorities with respect to Borrowers under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, that has been reasonably requested by Lenders in advance of the Closing Date.
(w) Agent shall have received evidence of payoff of that certain Senior Secured Super-Priority Debtor-in-Possession Credit Agreement, dated as of January 31, 2013, among Company and certain of its Subsidiaries party thereto, as borrowers, the guarantors party thereto, as guarantors, the lenders party thereto, as lenders, and Bayside Finance LLC, as administrative agent.
Appears in 2 contracts
Samples: Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions (except to the extent that such conditions are permitted by Agent to be satisfied on a post-closing basis pursuant to a post-closing agreement) has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed deposit account control agreements establishing with respect to each Dominion Deposit Account and related lockboxlockbox and Securities Account, in form and substancesubstance reasonably satisfactory to Agent, and with financial institutions, reasonably satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Responsible Officer of each Borrower Representative certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower each Obligor is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each ObligorBorrower, certifying (i) that attached copies of such ObligorBorrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; , (ii) that an attached copy of resolutions (to the extent necessary under Applicable Law or applicable Organic Documents) authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; , and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP& Xxxxx, as well as any local counsel to Borrowers and Parent in Utah and Michiganany Borrower or Borrower Representative, each in form and substance reasonably satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified as appropriate by the Secretary of State or other appropriate another official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, assets, properties, liabilities, financial condition or prospects of any Obligor shall have occurred since January 29, 2011.
(j) No action, suit, investigation, litigation or proceeding shall have been pending or threatened in any court or before any arbitrator or governmental instrumentality that in Agent’s judgment (i) could reasonably be expected to have a material adverse effect on Borrowers’ business, operations, Propertiesproperties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity could materially and adversely impair Borrowers’ ability to perform satisfactorily under this Agreement; or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent could reasonably be expected to materially and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of adversely affect this Agreement or the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)transactions contemplated hereby.
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateSeptember 3, 2011. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00040,000,000.
(m) Agent shall have received an inventory appraisal, the results of which are reasonably satisfactory to Agent, it being understood that this condition may be satisfied by receiving a reliance letter in favor of Agent with respect to the existing Hilco appraisal.
(n) Borrowers shall have received, or shall receive substantially contemporaneously herewith, the proceeds of the Second Lien Debt in the amount of $55,000,000 pursuant to the terms of the Second Lien Debt Documents which shall be in form and substance reasonably satisfactory to Agent.
(o) Agent shall have entered into (i) a joinder to the 2009 Debenture Intercreditor Agreement, (ii) the Last-Out Term Loan Intercreditor Agreement, and (iii) the Second Lien Debt Intercreditor Agreement.
(p) Without duplication of the foregoing, Agent shall have received those documents, certificates and agreements set forth on the separate closing checklist delivered by Agent to Borrower Representative.
Appears in 2 contracts
Samples: Credit Agreement (Apparel Holding Corp.), Credit Agreement (Apparel Holding Corp.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of received, in proper form for filing or recording, all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens, to the extent requested by Agent.
(c) Agent shall have received all certificates or instruments representing or evidencing all Pledged Interests required by Section 7.4.1 accompanied by all necessary instruments of transfer or assignment, duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agentblank.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower each Borrower, on an individual basis, is Solvent and the Obligors, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 that are qualified by materiality are true and correctcorrect and the representations and warranties set forth in Section 9 that are not qualified by materiality are true and correct in all material respects; and (iv) such Borrower each Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents (as to each Guarantor, which have modified since, or were not delivered to Agent in connection with, the Existing Agreement) are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received (i) a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as SilvermanAcampora in form and substance satisfactory to Agent and (ii) a written opinion of any local counsel to Borrowers and Parent in Utah and MichiganObligors as Agent may reasonably request, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(li) The Intercreditor ATSCO Acquisition shall be consummated in accordance with the ATSCO Purchase Agreement shall have been duly executed and delivered without any amendments, modifications, waivers or consents thereto that are not reasonably acceptable to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretionAgent.
(mj) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Compliance Certificate prepared as of the Closing Date. Upon June 30, 2014 demonstrating that upon giving effect to the initial funding of ATSCO Acquisition and all Loans and issuance of Letters of CreditCredit made or issued in connection therewith or on the Closing Date, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practicestherewith on the Closing Date, Availability shall be at least $20,000,000the Borrowers are in pro forma compliance with the covenants set forth in Section 10.3.
Appears in 2 contracts
Samples: Loan and Security Agreement (P&f Industries Inc), Loan and Security Agreement (P&f Industries Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) To the extent required by this Agreement, Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects (without giving effect to any materiality qualifiers contained therein); and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a such projections and interim financial statements as Agent may request.
(g) Agent shall have received written opinion opinions of Pillsbury Xxxxxxxx Xxxx Xxxxxxx DLA Piper US LLP, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ij) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 20082007.
(jk) No action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that in Agent’s judgment could reasonably be expected to have a Material Adverse Effect.
(l) Agent shall have received, each received all documentation and other information that Agent requires in form order to comply with its obligations under applicable “know your customer” and substance anti-money laundering rules and regulations and such background checks as Agent may require with results satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and Agent in its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)discretion.
(km) Agent shall have received such environmental reports and studies as deemed appropriate by Agent and the results of which are satisfactory to Agent in its discretion.
(n) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(no) Agent shall have received a Borrowing Base Certificate prepared as of not less than two Business Days prior to the Closing Date. Upon As of the Closing Date and after giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability Obligors shall be at least have not less than $20,000,00065,000,000 in unrestricted consolidated cash.
(p) Each of the other documents set forth on the “Closing Checklist” prepared by Agent’s counsel and made available to Borrowers has been duly-executed and delivered, and all other items set forth on such Closing Checklist have been verified or delivered, as applicable, in each case to the satisfaction of Agent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hypercom Corp), Loan and Security Agreement (Hypercom Corp)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers Borrower hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers Borrower and delivered to each Lender that requests issuance of a NoteNote at least one (1) Business Day prior to the Closing Date. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments executed copies of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received a certificate or certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer or the Treasurer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ed) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign executing the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fe) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Weil, Gotshal & Xxxxxx LLP, as well as local and Borrower’s general counsel to Borrowers and Parent in Utah and Michiganor assistant general counsel, each in form and substance reasonably satisfactory to Agent.
(gf) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hg) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrower, together with, with respect to property insurance in respect of property constituting Collateral and the general and/or excess liability insurance on the Properties and business of Borrower and its Subsidiaries, loss payable and additional insured endorsements naming Agent as loss payee and additional insured, as applicable, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ih) Agent shall have (i) received financial projections of Borrower evidencing Borrower’s ability to comply with the financial covenants set forth herein on a pro forma basis, (ii) completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examinationin all cases, with results reasonably satisfactory to Agent, and (iii) received a reasonably satisfactory appraisal of Borrower’s Inventory. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082013.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers Borrower shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nj) Agent shall have received a Borrowing Base Certificate prepared as of January 1, 2014.
(k) Agent shall have received an officer’s certificate certifying that neither the Closing Date. Upon giving effect to execution or performance of the initial funding Loan Documents nor the incurrence of Loans and issuance of Letters of Creditany Obligations by Borrower violates the Existing 2018 Senior Secured Notes, and the payment by Borrowers of all fees and expenses incurred Existing 2019 Senior Notes, the Existing 2020 Senior Notes or the Existing 2022 Senior Notes (or, in each case, the indenture executed in connection herewith therewith).
(l) Borrower shall have obtained all material Governmental Authority and other third party consents and approvals as well as any payables stretched beyond may be reasonably necessary or appropriate to execute the Loan Documents and perform their customary payment practices, Availability shall be at least $20,000,000obligations hereunder and thereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement (Ak Steel Holding Corp), Loan and Security Agreement (Ak Steel Holding Corp)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers Borrower hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers Borrower and delivered to each Lender that requests issuance of a NoteNote at least one (1) Business Day prior to the Closing Date. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments executed copies of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received a certificate or certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer or the Treasurer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is and its Subsidiaries on a consolidated basis are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has the Obligors have complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ed) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign execute the Loan DocumentsDocuments on the Closing Date. Agent and Lenders may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fe) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Weil, Gotshal & Xxxxxx LLP, as well as local and Borrower’s general counsel to Borrowers and Parent in Utah and Michiganor assistant general counsel, each in form and substance reasonably satisfactory to Agent.
(gf) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hg) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrower, together with, with respect to property insurance in respect of property constituting Collateral and the general and/or excess liability insurance on the Properties and business of Borrower and its Subsidiaries, loss payable and additional insured endorsements naming Agent as loss payee and additional insured, as applicable, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ih) Agent shall have (i) received financial projections of Borrower evidencing Borrower’s ability to comply with the financial covenants set forth herein on a pro forma basis, (ii) completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examinationin all cases, with results reasonably satisfactory to Agent, and (iii) received a reasonably satisfactory appraisal of Borrower’s Inventory. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082016.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers Borrower shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nj) Agent shall have received a Borrowing Base Certificate prepared as of July 31, 2017.
(k) Agent shall have received an officer’s certificate certifying that neither the Closing Date. Upon giving effect to execution or performance of the initial funding Loan Documents nor the incurrence of Loans and issuance of Letters of Creditany Obligations by Borrower violates the Existing Senior Notes (or, and in each case, the payment by Borrowers of all fees and expenses incurred indenture executed in connection herewith therewith).
(l) Borrower shall have obtained all material Governmental Authority and other third party consents and approvals as well as any payables stretched beyond may be reasonably necessary or appropriate to execute the Loan Documents and perform their customary payment practices, Availability shall be at least $20,000,000obligations hereunder and thereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement (Ak Steel Holding Corp), Loan and Security Agreement (Ak Steel Holding Corp)
Conditions Precedent to Initial Loans. In addition The amendment and restatement of the Existing Agreement pursuant to the conditions set forth in Section 6.2, Lenders terms hereof shall not be required subject to fund any requested Loan, issue any Letter satisfaction of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:(except to the extent that such conditions are permitted by each Lender to be satisfied on a post-closing basis pursuant to a post-closing agreement) (the date such conditions are satisfied or waived, the “Closing Date”):
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent the Lenders by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent The Lenders shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Responsible Officer of each Borrower Representative certifying that, after giving effect to the initial Loans and transactions hereunder, that (i) such Borrower each Obligor is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 8 are true and correctcorrect in all material respects; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ec) Agent The Lenders shall have received a certificate of a duly authorized officer of each ObligorBorrower, certifying (i) that attached copies of such ObligorBorrower’s Organic Documents are true and complete, and in full force and effect, without amendment except expect as shown; , (ii) that an attached copy of resolutions (to the extent necessary under Applicable Law or applicable Organic Documents) authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; , and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent The Lenders may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fd) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent The Lenders shall have received copies of the charter documents of each Obligor, certified as appropriate by the Secretary of State or other appropriate another official of such Obligor’s jurisdiction of organization. Agent The Lenders shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(he) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, assets, properties, liabilities, financial condition or prospects of any Obligor shall have occurred since January 28, 2013.
(f) No action, suit, investigation, litigation or proceeding shall have been pending or threatened in any court or before any arbitrator or governmental instrumentality that in Collateral Agent’s judgment (i) could reasonably be expected to have a material adverse effect on Borrowers’ business, operations, Propertiesproperties, prospects or condition (financial or otherwise) of any Obligor or in could materially and adversely impair Borrowers’ ability to perform satisfactorily under this Agreement; or (ii) could reasonably be expected to materially and adversely affect this Agreement or the quality, quantity or value of any Collateral shall have occurred since September 30, 2008transactions contemplated hereby.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(kg) Borrowers shall have paid all legal fees and expenses to be paid to Agent and Lenders on the Closing Date.
(lh) The Intercreditor Agreement Revolver Loan Documents and the Second Lien Debt Documents shall have been duly executed and delivered amended in a manner reasonably acceptable to Agent the Lenders in order to permit the incurrence by each the Borrowers of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretionTerm G Loans hereunder.
(mi) Agent Lenders shall have received a listing of evidence that the Borrowers’ Account Debtors, including Loans under this Agreement have been designated as “Additional Priority Permitted Debt” under the name and address of each such Account Debtor2009 Indenture.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 2 contracts
Samples: Term Loan Agreement (Apparel Holding Corp.), Term Loan Agreement (Apparel Holding Corp.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:satisfied (it being acknowledged that all deliveries to Agent and Lenders need be in form and substance and in quantities reasonably acceptable to Agent and Lenders):
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof. Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note.
(b) Agent shall have received acknowledgments copies (or, if acceptable to Agent, acknowledgments) of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC intellectual property, real estate title, and Lien and judgment searches and other evidence reasonably satisfactory to Agent that such Agent’s Liens are the only Liens upon the Collateral, except Permitted LiensLiens and Liens securing Debt to be Repaid pursuant to payoff letters in form and substance reasonably satisfactory which have also been executed and delivered to Agent.
(c) Agent shall have received the Related Real Property Documents for all Included Real Property.
(d) Agent shall have received phase I environmental reports addressed to or otherwise allowing reliance thereof by Agent with respect to each parcel of Included Real Property (other than the XxXxx Parcel), which reports shall be in form and substance reasonably satisfactory to Agent.
(e) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, reasonably satisfactory to AgentAgent and all Deposit Control Agreements relating to Loan Parties’ Deposit Accounts (other than Excluded Deposit Accounts).
(df) Agent shall have received one or more certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior the Chief Financial Officer of each Borrower certifying that, :
(i) after giving effect to the initial Loans and transactions hereunder, the Related Transactions and the issuance of Sponsor Debt, (iA) such Borrower is Loan Parties, taken as a whole, are Solvent; (iiB) no Default or Event of Default existsexists and no default or event of default under any other material Debt, agreement or contract of any Loan Party exists or, in any case, would result from such transactions; (iiiC) the representations and warranties set forth in Section 9 are true and correct; and (ivD) such Borrower has Loan Parties have complied with all agreements and conditions to be satisfied by it them under the Loan Documents, Related Agreements and the Sponsor Note Documents, and each such condition has been satisfied;
(ii) (A) attached thereto are true, correct and complete copies of each Related Agreement together with all annexes, exhibits and schedules thereto, the terms and conditions of which are reasonably satisfactory to Agent, and no provision of such documentation shall have been waived, amended, supplemented or otherwise modified in any material respect without the prior written consent of Agent, and (B) that (x) attached thereto are true, correct and complete copies of all governmental and third party approvals, authorizations and consents necessary in connection with the Related Transactions, and for the continuing operations of Loan Parties after giving effect thereto (including, but not limited to, any antitrust approval or waiver of antitrust review issued by any Governmental Authority, including, but not limited to, Xxxx-Xxxxx-Xxxxxx clearance) and such approvals, authorizations and consents shall be on terms reasonably satisfactory to Agent and shall be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose any material adverse conditions on the Related Transactions, or impose any adverse condition on the Loans, the other financial accommodations to be made pursuant to this Agreement or Agent or Lenders and (y) no other such approvals, authorizations or consents are necessary in connection with the Related Transactions and for the continuing operations of Loan Parties after giving effect thereto; and
(iii) attached thereto are true, correct and complete copies of each Sponsor Note Document together with all annexes, exhibits and schedules thereto, the terms and conditions of which are reasonably satisfactory to Agent, and no provision of such documentation shall have been waived, amended, supplemented or otherwise modified in any material respect without the prior written consent of Agent.
(eg) Agent shall have received a certificate of a duly authorized officer of each ObligorLoan Party, certifying (i) that attached copies of such ObligorLoan Party’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents, the Related Agreements and the Sponsor Note Documents is are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facilitysuch matters; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor Loan Party in writing.
(fh) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxx & Xxxxxxx LLP, as well as any local counsel to Borrowers and Parent Loan Parties or Agent, as Agent shall reasonably request (including from each state in Utah and Michigan, each in form and substance satisfactory to Agentwhich the Included Real Estate is located).
(gi) Agent shall have received copies of the charter documents of each ObligorLoan Party, certified by the Secretary of State or other appropriate official of such ObligorLoan Party’s jurisdiction of organization. Agent shall have received good standing certificates for each ObligorLoan Party, issued by the Secretary of State or other appropriate official of such ObligorLoan Party’s jurisdiction of organization and each jurisdiction where such ObligorLoan Party’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ij) Agent shall have completed its business, financial and legal due diligence of ObligorsLoan Parties (other than SoCal and its Subsidiaries), including a roll-forward of its previous field examination, with results satisfactory to Agent. Agent shall have completed its business, financial and legal due diligence of SoCal and its Subsidiaries, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor Loan Party or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)2009.
(k) Borrowers Agent shall have paid received payment by Loan Parties of all accrued and unpaid fees and expenses to be paid the extent then due and payable to Agent and Agent, Issuing Bank and/or Lenders on the Closing DateDate (including, without limitation, pursuant to the Fee Letter), together with all reasonable and properly documented out-of-pocket expenses (including legal fees and expenses of Xxxxx Day, special counsel to Agent, and any other reasonably necessary legal counsel to Agent and the fees and expenses of any consultants and other advisors) required to be reimbursed or paid by Loan Parties hereunder or under any other Loan Document, plus such additional amounts of such expenses as shall constitute Agent’s reasonable estimate of such expenses incurred or to be incurred by Agent through the closing proceedings (provided, that such estimate shall not thereafter preclude final settling of accounts between Loan Parties and Agent).
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared dated as of the Closing DateDate based on November 30, 2010. Upon giving effect to the initial funding of Loans and issuance of Letters of CreditCredit (including the Existing Letters of Credit deemed issued on the Closing Date), and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00012,000,000.
(m) Agent shall be reasonably satisfied with the insurance program to be maintained by Loan Parties and shall have received endorsements to Loan Parties’ insurance policies (including, but not limited to, any casualty policy of any Loan Party) naming Agent as loss payee and proof of such insurance naming Agent as additional insured, in each case, in form and substance reasonably satisfactory to Agent; provided, that Agent acknowledges and agrees that Loan Parties’ current insurance coverages and policy limits are acceptable.
(n) The organizational and capital structure of each Loan Party and Loan Parties taken as a whole, before and after giving effect to the Related Transactions, transactions contemplated by the Sponsor Note Documents and the transactions contemplated by the Loan Documents shall be reasonably acceptable to Agent.
(o) Agent shall have received copies of any and all legal opinions delivered in connection with the Related Transactions, which opinions shall be addressed to Agent or expressly state that Agent may rely thereon or be delivered together with a letter stating that Agent may rely on such opinions.
(p) Agent’s legal counsel shall have completed its, and Agent shall be satisfied with the results of its legal counsel’s, review relating to Loan Parties, their assets and the Related Transactions, including, without limitation, the Merger.
(q) A collateral field examination shall have been conducted by an independent third party appraiser reasonably acceptable to Agent and delivered to Agent, in form and substance reasonably satisfactory to Agent. In the event that the written results of any collateral field examination reflect deficiencies, as determined in the commercially reasonable credit judgment of Agent, so long as all other conditions in this Section 6 have been satisfied or waived in accordance with the provisions of this Section 6, Agent shall address such deficiencies by modifications to advance rates, reserves and eligibility criteria applicable to the Collateral.
(r) Loan Party Agent shall have delivered to Agent one or more recent appraisals of all Included Rolling Stock prepared by Xxxxxx & Xxxxxx together with a reconciliation of the Original Rolling Stock Appraisal.
(s) Agent shall have received the Project Blazers Due Diligence Assistance Draft Report dated November 24, 2010 prepared by KPMG Services with respect to Old SoCal and its Subsidiaries.
(t) Agent shall have received, in form and substance reasonably satisfactory to Agent, projected income statements, balance sheets and cash flow statements of Parent and its Subsidiaries and giving effect to the making of the initial Loans and the Related Transactions and the use of proceeds of the Loans on a monthly basis for Fiscal Year 2011 and on an annual basis for Fiscal Years 2012 - 2014.
(u) Agent shall have received, (i) audited or, in the case of Old SoCal and its Subsidiaries for 2009, reviewed, consolidated financial statements (including balance sheets, statements of earnings and cash flows) for Parent and its Subsidiaries and pre-Closing Date SoCal and its Subsidiaries for Fiscal Years 2007, 2008 and 2009 and (ii) unaudited interim consolidated financial statements (including balance sheets and statements of earnings) for Parent and its Subsidiaries and Old SoCal and its Subsidiaries for the first three Fiscal Quarters and October and November of 2010 (satisfaction of this condition as it relates to Parent and the pre-Closing Date Subsidiaries of Parent is hereby acknowledged).
(v) Agent shall have received, in form and substance reasonably satisfactory to Agent, a pro forma consolidated balance sheet of Parent and its Subsidiaries dated as of the Closing Date, giving effect to the Related Transactions and the transactions contemplated hereby and by the Sponsor Note Documents, which balance sheet shall reflect no material changes from the most recent pro forma balance sheet of Parent and its Subsidiaries and SoCal and its Subsidiaries previously delivered to Agent.
(w) Agent shall have received, and be reasonably satisfied in form and substance with, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(x) All Debt to be Repaid by any Loan Party shall have been (or concurrently with the initial borrowing will be) paid in full in cash, and all agreements and instruments governing such Debt and all Liens securing such Debt shall have been (or concurrently with the initial borrowing will be) terminated pursuant to agreements from the lenders thereunder to Agent (executed copies of which have been received by Agent).
(y) All conditions to the Merger (other than the payment of the merger consideration under the Related Agreements, which shall not exceed $30,000,000 (exclusive of $33,100,000 payable in assumed debt) in aggregate, consisting of not more than $15,000,000 payable in cash and at least $14,857,000 payable in the form of common stock of Parent) shall have been fully satisfied in accordance applicable law and on terms set forth in the Related Agreements (with no provisions or conditions waived or amended without the written consent of Agent).
(z) The Merger shall have become effective and the name of Merger Sub shall have been changed to Southern Cal Transport, Inc. and Agent shall have received a copy of the filed and effective Merger Certificate and evidence of such name change from the Secretary of State of Alabama.
(aa) The Sponsor shall have issued, and Parent shall have received the proceeds of, the Sponsor Note in an aggregate amount of no less than $15,000,000.
(bb) Agent shall have received evidence of the issuance of not less than $14,857,000 of common stock of Parent as partial consideration for the Merger.
(cc) There shall not have occurred since December 31, 2010 any material disruption of or material adverse change in conditions in the financial, banking or capital markets.
(dd) Agent shall have received a duly executed Lien Waiver with respect to each headquarter location of any Loan Party.
(ee) Prior to the Merger, all Equity Interests in Xxxxx shall have been validly and indefeasibly contributed to Old SoCal pursuant to and in compliance with the terms of the Contribution Documents and from and after the Merger, Xxxxx shall thereafter be a Wholly- Owned Subsidiary of SoCal.
(ff) Prior to the Closing Date, the Xxxxx Operating Agreement shall have been amended to provide for the transferability of membership interests and to reflect SoCal as the new sole member.
(gg) Agent shall have received all other instruments, documents, certificates and agreements, set forth on the List of Closing Documents attached hereto as Schedule 6.1 and any other documents, instruments or agreements as Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Loan, Security and Guaranty Agreement (Transport America, Inc.), Loan, Security and Guaranty Agreement (Transport America, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders there shall not be required no obligation or requirement to fund any requested the initial request for a Loan, issue initial issuance of any Letter of Credit, or otherwise extend initial credit to Borrowers any Credit Party hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor Credit Party shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of received, in proper form for filing or recording, all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Government Receivables Deposit Account, Private Deposit Account, Concentration Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesa certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is the Credit Parties, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower each Credit Party has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each ObligorCredit Party, certifying (i) that attached copies of such ObligorCredit Party’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified modified, revoked or revoked, and constitute all resolutions adopted with respect to this credit facilitycontradicted by any other resolution; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor Credit Party in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxx Xxxxxxx LLPXxxxxx & Xxxxx, PLLC, as well as local counsel to Borrowers and Parent in Utah and Michiganthe Credit Parties, each in form and substance reasonably satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each ObligorCredit Party, certified by the Secretary of State or other appropriate official of such ObligorCredit Party’s jurisdiction of organization. Agent shall have received good standing certificates for each ObligorCredit Party, issued by the Secretary of State or other appropriate official of such ObligorCredit Party’s jurisdiction of organization and each jurisdiction where such ObligorCredit Party’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersCredit Parties, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of ObligorsCredit Parties, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects event or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082009 that has had or could reasonably be expected to have a Material Adverse Effect.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nk) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateMay 31, 2010. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00050,000,000.
(l) Agent shall have received evidence that the Borrowers have received the net cash proceeds of the Senior Notes issued in an original principal amount not less than $500,000,000.
(m) Agent shall have received evidence that the Debt incurred and outstanding pursuant to the Existing First Lien Debt Documents and the Existing Second Lien Debt Documents has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing First Lien Debt Documents and the Existing Second Lien Debt Documents have been or concurrently with the Closing Date are being released.
Appears in 2 contracts
Samples: Loan and Security Agreement (Lawton Surgery Investment Company, LLC), Loan and Security Agreement (NPMC Holdings, LLC)
Conditions Precedent to Initial Loans. In addition The obligation of each Lender to make its extension of credit to be made hereunder on the Closing Date is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, satisfaction (or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”waiver by Agent) that each of the following conditions has been satisfiedprecedent:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockboxreceived, in form and substancesubstance satisfactory to it, (a) a pro forma balance sheet of Borrowers dated as of the date of closing and giving effect to the US Footwear Acquisition, (b) financial projections of Borrowers, giving effect to the US Footwear Acquisition, evidencing Borrowers' ability to comply with Section 10.3, and with (c) interim financial institutionsstatements for Borrowers and the Target as of January 31, satisfactory to Agent2021.
(d) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that after giving pro forma effect to the Loans made hereunder on the Closing Date, the Revolving Loans and other extensions of credit made under the Revolving Loan Facility on the Closing Date and the consummation of the US Footwear Acquisition, (i) EBITDA, for the 12 month period ending on December 31, 2020, using pro forma adjustments satisfactory to Agent, was equal to or greater than $57,500,000 and (ii) the Total Leverage Ratio for Parent and its Subsidiaries, on a consolidated basis, for the 12 month period ending on December 31, 2020, was less than or equal to 3.75:1.0.
(e) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans, the Revolving Loans under the Revolving Loan Facility, the consummation of the US Footwear Acquisition and the transactions hereunder, (i) such Borrower Obligor is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s 's Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person those Person(s) that are authorized to sign to, and have signed, the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPXxxxxx Xxxxxx Xxxxxx & Xxxxxx XXX, as well as any local counsel to Borrowers and Parent in Utah and MichiganObligors or Agent, each in form and substance reasonably satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s Xxxxxxx's jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationfailure to be so qualified would reasonably be expected to result in a Material Adverse Effect.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, all in compliance with the Loan Documents.
(j) Each Obligor shall have provided, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
Agent and each Lender, a duly executed W-9 (i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwisesuch other applicable tax form) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Borrower Agent, interim financial statements not more than 30 and all documentation and other information as Agent or any Lender reasonably requests at least 5 days prior to the Closing Date for: in connection with applicable "know your customer" and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Obligor qualifies as a "legal entity customer" under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Agent and Lenders in relation to such Obligor.
(a) Since December 31, 2019, no Borrower Material Adverse Effect shall have occurred and (b) no Material Adverse Effect (as defined in the Purchase Agreement) shall have occurred.
(l) Upon giving effect to the funding of Loans and the extensions of credit under the Revolving Loan Facility, if any, on the Closing Date, the consummation of all transactions contemplated by the Purchase Agreement, and the payment by the Borrowers of all fees and expenses incurred in connection herewith and therewith, (i) Parent and its Subsidiaries on a consolidated basis; Revolver Usage shall not exceed $80,000,000 and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)Availability shall be at least $20,000,000.
(km) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
Date (l) The Intercreditor Agreement shall have been duly executed including all fees set forth in the Fee Letter and delivered all fees and expenses of legal counsel to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account DebtorAgent).
(n) Agent shall have received evidence satisfactory to it that Borrowers have received all governmental, shareholder and third party consents (including, but not limited to, cl with the Xxxx Xxxxx Xxxxxx Anti-Trust Improvements Act of 1976, as amended) and approvals as may be appropriate in connection with this credit facility, the Term Loan Facility and the transactions contemplated thereby.
(o) Substantially concurrently with (or prior to) the making of the Loans, the US Footwear Acquisition shall be consummated in accordance with the terms and conditions of the Purchase Agreement (including all schedules and exhibits thereto and after giving effect to any amendment, modification, supplement or waiver permitted below), and the Purchase Agreement shall not have been amended or otherwise modified or supplemented or any provision or condition therein waived, if such amendment, modification, supplement or waiver would be materially adverse to the interests of the Agent or Lenders (in their capacities as such), without the prior written consent of the Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood and agreed that (i) any change to the definition of Material Adverse Effect (as defined in the Purchase Agreement) as it relates to the Target shall be deemed to be adverse to the interests of the Agent and Lenders in a material respect, (ii) any reduction in the purchase price set forth in the Purchase Agreement shall not be deemed to be materially adverse to the interests of the Agent or Lenders so long as such reduction is applied on a dollar-for-dollar basis to reduce the aggregate amount of the Revolving Loan Facility, and (iii) any increase in the purchase price set forth in the Purchase Agreement shall be deemed to be not materially adverse to the interests of the Agent or Lenders so long as such purchase price increase is funded entirely with cash proceeds from an additional equity investment).
(p) Substantially concurrently with the borrowing under this Agreement, the Borrowers shall have repaid and terminated all outstanding debt under that certain Revolving Credit, Guaranty, and Security Agreement dated as of February 13, 2019 among certain of the Obligors and The Huntington National Bank (the "Closing Date Refinancing").
(q) Agent shall have received executed copies of the Revolving Loan Documents, together with a certificate of a Senior Officer certifying that each such document is a true, correct, and complete copy thereof.
(r) Agent shall have received a Borrowing Base Certificate prepared as of March 15, 2021, which may reflect the amount of the "deemed Borrowing Base," but shall otherwise conform to the definition of Borrowing Base.
(s) Agent shall have received a fully executed Notice of Borrowing for the Term Loans being advanced on the Closing Date.
(t) No Default or Event of Default exists.
(u) The representations and warranties of each Obligor in the Loan Documents are true and correct in all material respects (or in all respects in the case of any representations and warranties qualified by materiality) on and as of the Closing Date. Upon Date upon giving effect to the initial funding of Loans the Term Loan, except to the extent that such representations and issuance of Letters of Creditwarranties specifically refer to an earlier date, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability which case they shall be at least $20,000,000true and correct in all material respects (or in all respects in the case of any representations and warranties qualified by materiality) as of such earlier date.
Appears in 2 contracts
Samples: Loan and Security Agreement (Rocky Brands, Inc.), Loan and Security Agreement (Rocky Brands, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders and Issuing Banks shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:satisfied (or waived by Agent with the consent of all Lenders):
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Except as provided on Schedule 10.1.11, Agent shall have received satisfactory evidence that Agent and/or Security Trustee shall have a valid and perfected first priority (except as otherwise permitted hereunder) Lien in the Collateral (including acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC ) and Lien searches and that all Liens on the Collateral other evidence satisfactory to Agent that such than Permitted Liens have been (or are the only Liens upon the Collateral, except Permitted Liensbeing) terminated.
(c) Agent shall have received duly executed agreements establishing evidence of the establishment of each Dominion Account and related lockboxlockboxes (or similar arrangements acceptable to the Agent), together with fully-executed Deposit Account Control Agreements with respect thereto and covering the other Deposit Accounts listed on Schedule 8.5, in form each case as required by Sections 8.2.4 and substance, and with financial institutions, satisfactory to Agent8.5.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsDocuments as of the Closing Date.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents; and (iv) that attached thereto are all governmental and third party consents and approvals as may be appropriate for such Obligor to obtain in connection with this Agreement (or a statement that no such consents or approvals are required). Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxxx Day, as UK counsel to the UK Domiciled Obligors and U.S. counsel to the Obligors, Norton Xxxx Xxxxxxx LLPXxxxxxxxx, as Dutch and UK counsel to Agent, as well as any other local counsel to Borrowers and Parent in Utah and MichiganObligors or Agent, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor (to the extent applicable in an Obligor’s jurisdiction of organization), issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, all in compliance with the Loan Documents, together with endorsements naming and, if applicable, the designation of Agent as lender loss payee or additional insuredas its interest may appear thereunder, as appropriatein each case, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor Borrower or in of the qualityObligors, quantity or value of any Collateral taken as a whole, shall have occurred since September 30December 31, 20082012.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date, including all fees and expenses due under the Fee Letters.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nk) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateNovember 30, 2013. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Total Excess Availability shall be at least $20,000,000100,000,000.
(l) All Debt arising under the Existing Credit Agreements shall have been repaid in full, and Agent shall have received satisfactory payoff letters, lien release documentation or similar agreements which evidence the foregoing.
(m) Any information reasonably required by a Lender and any other Secured Party to enable it to meet its internal “know your customer” compliance requirements and normal operating procedures shall have been delivered.
(n) There shall be no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that in Agent’s judgment could reasonably be expected to have a Material Adverse Effect.
(o) Agent shall have received (a) financial projections of Parent through 2017 which, among other things, evidence Borrowers’ ability to comply with the Fixed Charge Coverage Ratio and (b) interim financial statements for Parent and its Subsidiaries as of October 31, 2013.
(p) Agent shall have received UCC and Lien searches and other evidence satisfactory to Agent that its and/or Security Trustees’ Liens are the only Liens upon the Collateral, except Permitted Liens.
(q) Each Obligor shall deliver to Agent a completed Perfection Certificate, executed and delivered by a Senior Officer of such Obligor, together with all attachments contemplated thereby. For purposes of determining compliance with the conditions specified in this Section 6.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable to a Lender or Agent unless Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Hyster-Yale Materials Handling, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers This Agreement, the Guarantee and delivered to Collateral Agreement, the Perfection Certificate, the Intercreditor Agreement and each Lender that requests issuance of a Note. Each other Loan Document required by the terms hereof to be delivered on the Closing Date shall have been duly executed and copies of executed counterparts of each such Loan Document shall have been delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the CollateralCollateral (other than Collateral which may be perfected post-closing in accordance with the terms hereof) (or arrangements satisfactory to Agent for filing financing statements shall have been made), as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received a life-of-loan flood hazard determination for all Real Estate owned by an Obligor and, if such Real Estate is located in a special flood hazard area, an acknowledged notice to the applicable Borrower and flood insurance by an insurer acceptable to Agent.
(d) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, set forth on Schedule 8.5, in form and substance, and with financial institutions, satisfactory to Agent and duly executed Deposit Account Control Agreements, in form and substance, reasonably satisfactory to Agent.
(de) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower Company and each of its Subsidiaries, on a consolidated basis, is Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx Xxxx Xxxxxxx LLP, as well as any local counsel to Borrowers and Parent for each jurisdiction in Utah and Michiganwhich an Obligor is organized, in each case, in form and substance reasonably satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents.
(j) Since April 28, together 2012, there has been no circumstance, event or condition that has or could reasonably be expected to have a material adverse effect on the business, assets, liabilities, operations, or financial condition of Borrowers, taken as a whole (excluding the Bankruptcy Proceedings and any historical events associated with endorsements naming the Bankruptcy Proceedings, and any events that customarily occur as part of a proceeding under Chapter 11 of the Bankruptcy Code).
(k) No action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) could reasonably be expected to have a material adverse effect on the business, assets, liabilities, operations, or financial condition of Obligors, taken as a whole, or could impair the ability of an Obligor to perform its obligations under the Loan Documents; or (ii) could reasonably be expected to materially and adversely affect the Transactions.
(l) Agent as lender loss payee or additional insuredand the Original Lead Arrangers shall have received, as appropriate, each in form and substance satisfactory to Agent.
Agent and the Original Lead Arrangers, (i) Agent shall have completed a pro forma balance sheet of Company and its businessSubsidiaries dated as of the Closing Date and giving effect to the effectiveness of the Plan of Reorganization, (ii) financial projections of Company and legal due diligence of Obligorsits Subsidiaries, including a roll-forward of its previous field examination, evidencing Borrowers’ ability to comply with results satisfactory to Agent. No material adverse change the financial covenant set forth in the businessLoan Documents, operations, Properties, prospects or condition and (financial or otherwiseiii) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements for Company and its Subsidiaries as of a date not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)Date.
(km) Agent shall have received reasonably satisfactory evidence that Borrowers have received all governmental and third party consents and approvals as may be appropriate in connection with the Transactions.
(n) Agent and the Original Lead Arrangers shall have received a final collateral appraisal and field examination addressed or assigned to each of them and upon which each of them are entitled to rely and to share with potential lenders. Such collateral appraisal and field examination shall be, in each case, satisfactory to Agent and the Original Lead Arrangers.
(o) Borrowers shall have paid all fees and expenses to be paid to Agent Agent, the Original Lead Arrangers and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(np) Agent shall have received a Borrowing Base Certificate prepared as of the Friday immediately prior to the Closing Date. Upon giving effect to the initial funding of Loans loans and issuance of Letters letters of Creditcredit, the consummation of the Transactions and the payment by Borrowers of all fees and expenses incurred in connection herewith with the Transactions (including but not limited to administrative costs, cure costs, and the funding of cash out options for trade and other unsecured claims but excluding any Delayed Admin Claims), including those payable post-closing, as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00045,000,000. In addition, Agent and the Original Lead Arrangers shall have received, in form and substance satisfactory to them, a 13-week cash flow statement commencing on the Closing Date and ending 13 weeks thereafter, demonstrating that Availability is not less than $25,000,000 at any time during such 13-week period. (q) (i) Concurrently with the closing of the Senior Creditthis Agreement and the Term Loan Facility, the obligations under each of the DIP Facilities shall have been discharged and satisfied in full, all commitments thereunder shall have been terminated, any unexpired letters of credit issued thereunder shall have been returned or collateralized in accordance with the terms of the Plan of Reorganization and all Liens securing the DIP Facilities shall have been released, and Agent and the Original Lead Arrangers shall have received (x) a payoff letter to that effect from the administrative agent under each of the DIP Facilities and (y) evidence reasonably satisfactory to it of the termination of all UCC financing statement filings relating to the DIP Facilities and (ii) after consummation of the Plan of Reorganization and giving effect to the Transactions, Obligors shall have no outstanding Indebtedness, contingent liabilities or claims against them, except as expressly contemplated by the Plan of Reorganization and expressly permitted under the Loan Documents.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition At the time of the ------------------------------------- making of the initial Loans hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to the conditions set forth initial Loans (including, without limitation, Borrower's obligations to reimburse the reasonable fees and expenses of counsel to the Agent and any fees and expenses payable to the Agent and the Lenders as previously agreed with Borrower), shall have been paid in full, and, except as provided in Section 6.25.1(f), Lenders the Agent shall not be required have received the following, in form and substance reasonably satisfactory in all respects to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedAgent:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been the duly executed and delivered to Agent by each counterparts of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.this Agreement;
(b) Agent shall have received acknowledgments the duly completed Revolving Notes evidencing the Revolving Loan Commitments and the duly executed Line of all filings or recordations necessary to perfect its Liens in Credit Note evidencing the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.Line of Credit Commitment;
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.the Guaranty Agreements;
(d) Agent shall have received certificates, certificate of Borrower in substantially the form of Exhibit G --------- attached hereto and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.appropriately completed;
(e) Agent shall have received a certificate certificates of a duly authorized officer the Secretary or Assistant Secretary of each Obligorof 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;
(f) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) that attached the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the articles of incorporation and the bylaws or comparable governing documents of such entities;
(g) copies of such Obligor’s Organic all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents are true and completethe other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution effect and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent waiting periods shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.expired;
(h) Agent shall have received certified copies of policies indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or certificates securing Indebtedness of insurance for the insurance policies carried by Borrowersany Consolidated Company described on Schedule 8.1(b), all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each --------------- any single case in form and substance satisfactory to Agent.an amount not less than $1,000,000;
(i) certificates, reports and other information as the Agent shall have completed its business, financial and legal due diligence may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of Obligorsany material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including a roll-forward of its previous field examinationemployee relations, with results satisfactory to Agent. No material adverse change in the businesscollective bargaining agreements, operationsPlans, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.and other compensation and employee benefit plans;
(j) certificates, reports, environmental audits and investigations, and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations under Environmental Laws which could reasonably be expected to have a Materially Adverse Effect;
(k) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability, patent infringement and malpractice claims) pending or threatened against the Consolidated Companies;
(l) 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;
(m) the favorable opinion of Winderweedle, Haines, Xxxx & Xxxxxxx, P.A., counsel to the Credit Parties, substantially in the form of Exhibit H --------- addressed to the Agent and each of the Lenders; and
(n) financial statements of Borrower and its Subsidiaries, on a consolidated basis, for the most recently completed fiscal year. In addition to the foregoing, the following conditions shall have receivedbeen satisfied or shall exist, each in form and substance satisfactory all to the satisfaction of the Agent, interim financial statements not more than 30 days prior to as of the Closing Date fortime the initial Loans are made hereunder:
(o) payment in full and termination of all outstanding senior indebtedness of the Borrower and its Material Subsidiaries and the release of any liens securing the same; provided, however, the following indebtedness may remain outstanding: (i) Parent and its Subsidiaries all Capitalized Lease Obligations described on a consolidated basisSchedule 6.7; and (ii) Parent and its Subsidiaries installment notes described on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco GroupSchedule ------------ -------- 8.1(b).; ---
(kp) Borrowers shall have paid all fees and expenses the Loans to be paid to Agent and Lenders made on the Closing Date.Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Agent or any Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(lq) The Intercreditor Agreement shall have been duly executed all corporate proceedings and delivered to Agent by each all other legal matters in connection with the authorization, legality, validity and enforceability of the signatories thereto, and Credit Documents shall be reasonably satisfactory in form and substance satisfactory to each Lender in their sole discretion.the Required Lenders; and
(mr) the status of all pending and threatened litigation (including products liability, malpractice and patent claims) described on Schedule -------- 6.5, including a description of any damages sought and the claims --- constituting the basis therefor, shall have been reported in writing to the Agent, the Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each reported such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect matters to the initial funding of Loans and issuance of Letters of CreditLenders, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability Lenders shall be at least $20,000,000satisfied with such status.
Appears in 1 contract
Samples: Revolving Credit and Line of Credit Agreement (Rotech Medical Corp)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, Loan or otherwise extend credit to Borrowers Borrower hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:satisfied (or waived in accordance with Section 15.1.1(d)(i) hereof):
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Administrative Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Administrative Agent shall have received acknowledgments of all (i) filings or recordations necessary to perfect its Liens in the Collateral, as well as Collateral or arrangements reasonably satisfactory to Administrative Agent for such filings and recordations shall have been made (and all filing and recording fees and taxes in connection therewith shall have been duly paid or arrangements reasonably satisfactory to Administrative Agent for the payment of such fees and taxes shall have been made) and (ii) UCC and Lien searches and other evidence reasonably satisfactory to Administrative Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens, after giving effect to the refinancing of the Indebtedness outstanding under the Existing Credit Agreement.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent[Reserved].
(d) Administrative Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans term loans funded on the Closing Date and transactions hereunderthe Transactions, (i) such Borrower is and its Subsidiaries, on a Consolidated basis, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof); and (iv) such Borrower has Obligors have complied with all agreements and conditions to be satisfied by it on or before the Closing Date under the Loan Documents.
(e) Administrative Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Administrative Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Administrative Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxxxxx US LLP, as well as any local counsel to Borrowers and Parent in Utah and MichiganBorrower, each in form and substance reasonably satisfactory to Administrative Agent.
(g) Administrative Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Administrative Agent shall have received good standing certificates or similar instrument for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.organization. 128
(h) Administrative Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, as well as all necessary endorsements naming Administrative Agent as a lender loss payee with respect to the Collateral and additional insured under liability insurance, as the case may be, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) No event shall have occurred or circumstance exist since December 31, 2019 that, either individually or in the aggregate, has or would reasonably be expected to have a Material Adverse Effect. Administrative Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examinationNo changes or developments shall have occurred, with results satisfactory to Agent. No material adverse change in and no new or additional information, shall have been received or discovered by Administrative Agent or the business, operations, Properties, prospects or condition Lenders regarding the Obligors after the date such due diligence investigation has completed that (financial or otherwisei) of any Obligor either individually or in the qualityaggregate, quantity would reasonably be expected to have a Material Adverse Effect or value of any Collateral (ii) purports to materially adversely affect the Transactions, and nothing shall have occurred since September 30come to the attention of the Lenders to lead them to reasonably believe that (A) the Confidential Information Memorandum regarding Borrower and its Subsidiary and dated December 8, 20082020, was or has become misleading, incorrect or incomplete in any material respect or (B) the Transactions will have a Material Adverse Effect.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers Borrower shall have paid all reasonable and documented fees and expenses to be paid to Administrative Agent and Lenders on the Closing Date (provided that invoices for expenses shall have been delivered to Borrower three Business Days prior to the Closing Date).
(lk) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion[Reserved].
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Term Loan and Security Agreement (DXP Enterprises Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document (other than the Equipment Security Agreement, Mortgages, and Mortgage Support Documents) shall be in form and substance satisfactory to Agent, shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the CollateralCollateral (to the extent perfection of such Liens is required hereunder), as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) The Agent shall have received duly certificates and instruments evidencing the Pledged Collateral existing on the Closing Date accompanied by an undated instrument of assignment executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agentblank by the applicable Obligor.
(d) Agent shall have received certificatesduly executed agreements establishing the Dominion Account, in form and substance reasonably satisfactory to Agent.
(e) Agent shall have received a certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, as of the Closing Date (i) such Borrower is each of the Borrowers individually and the Obligors taken as a whole on a consolidated basis are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects; and (iv) such Borrower each Obligor has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsDocuments as of the Closing Date (unless waived by Agent).
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury opinion, from Xxxxxxxx Xxxx Xxxxxxx & Xxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each the Initial Guarantors in form and substance reasonably satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(hi) Agent shall have received Insurance Assignments and copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) To the extent not previously received, Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: received (i) Parent Parent’s 2005 and its Subsidiaries on a 2006 audited consolidated basis; and financial statements, (ii) Parent Parent’s unaudited consolidated financial statements as of and its Subsidiaries on a consolidating basis for the periods ended March 31, 2007, June 30, 2007, and September 30, 2007, (but only on a group by group basis iii) unaudited balance sheet and income statement of the Building Materials Distribution and Wood Products businesses of the Borrowers from the Borrowers’ internal operating statements for December 31, 2005, December 31, 2006, March 31, 2007, June 30, 2007, September 30, 2007 and for each closed month ending after September 30, 2007 (which are not intended to be prepared in accordance with generally accepted accounting principles and exclude footnotes to the financial statements), (iv) a pro forma consolidated balance sheet of the HRI GroupBorrowers and their Subsidiaries as of December 31, 2007 giving effect to the Paper Group Disposition and the effect of entering into the Revolving Credit Facility, and (v) projections of the Borrowers giving effect to the Paper Group Disposition, the Eldorado Group, proposed uses of the SCP Groupproceeds thereof, and the Tapco Group)effect on the Borrowers and the Revolving Credit Facility for the period beginning January 1, 2008 and ending December 31, 2012.
(k) No Closing Date Material Adverse Effect shall have occurred.
(l) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of a date that is no more than 45 days prior to the Closing Date. Upon .
(n) After giving effect to (i) the initial funding of Loans and issuance of Letters of Credit, (ii) the consummation of the Paper Group Disposition and application of all proceeds thereof, (iii) the payment by Borrowers of all fees and expenses incurred in connection herewith as well as with this Agreement and the transactions contemplated hereby, including the Paper Group Disposition, and (iv) any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000150,000,000.
(o) Agent shall have received the following in connection with the Paper Group Disposition:
(i) copies of the fully executed Purchase and Sale Agreement and all amendments thereto, together with evidence of consummation of the Paper Group Disposition;
(ii) a fully executed payoff letter with respect to the Existing Credit Agreement evidencing the payment in full and termination of all Debt and other obligations under the Existing Credit Agreement and related loan documents, together with all release documentation with respect to any security interest granted in connection therewith reasonably requested by Agent;
(iii) an 8-K issued by Parent evidencing its intent to make an Asset Disposition tender (as defined in the Indenture) for not less than $150,000,000 of the Subordinated Debt and evidence that such amount has been invested in Cash Equivalents pending delivery to the trustee in a manner reasonably acceptable to Agent;
(iv) evidence of termination of the receivables securitization program of Boise Cascade and certain of its subsidiaries with Bank of America and certain other investors party thereto, together with all release documentation with respect to any security interests granted in connection therewith reasonably requested by Agent; and
(v) evidence of payment and termination of all obligations under any interest rate swaps hedging any of variable rate obligations being repaid or to the extent not terminated: (a) such swaps do not have a xxxx-to-market position that would cause Excess Availability under this Agreement to be less than $150,000,000 on the Closing Date if such swaps were terminated and (b) the swap counterparties have released their liens under the Existing Credit Agreement or agreed to a continuation of such swaps in respect of the Revolving Loans.
(p) Agent shall be satisfied with the capital structure of the Borrowers as of the Closing Date.
(q) No action, suit, investigation, litigation or proceeding shall be pending or threatened in writing in any court or before any arbitrator or governmental instrumentality that in Agent’s reasonable business judgment could reasonably be expected to have a Closing Date Material Adverse Effect.
(r) To the extent not already provided to Agent, the Borrowers shall have provided all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the U.S.A. Patriot Act, to the extent such information is requested at least ten Business Days prior to the Closing Date.
(s) Agent shall not have become aware of any material information or other matter not previously known to Agent that in its good faith, reasonable determination is inconsistent in a material and adverse manner with any previous due diligence, information or matter known to Agent, which material information or other matter not previously known to Agent is reasonably likely to have a Closing Date Material Adverse Effect.
Appears in 1 contract
Samples: Loan and Security Agreement (Boise Cascade Holdings, L.L.C.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, Standby Term Loan or otherwise extend credit to Borrowers hereunder, until the date (“Closing Effective Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings filings, registrations or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is the Company and its Subsidiaries, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ed) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fe) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Gxxxxxxxx Txxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michiganthe Obligors, each in form and substance satisfactory to Agent.
(gf) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates (or their equivalents) for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hg) (If available in the relevant jurisdiction) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, together with loss payable endorsements naming Agent as lenders loss payee and as additional insured, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ih) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change change, in the good faith opinion of Agent, in the business, operationsassets, Properties, prospects or liabilities, operations, condition (financial or otherwise) of the Borrowers and the Guarantors, taken as a whole, financial condition of any Obligor or in the quality, quantity or value of any Collateral shall have has occurred since September 30December, 20082020.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Effective Date.
(j) Agent and the Revolver Agent shall have entered into the Intercreditor Agreement.
(k) [Reserved].
(l) [Reserved].
(m) Agent shall have received (i) audited financial statements of the Company and its Subsidiaries for the fiscal year ended December 2020, (ii) the internally prepared monthly divisional financial statements of the Company and its Subsidiaries for the months ended January 2021 through December, 2021, (iii) a pro forma balance sheet of the Company and its Subsidiaries dated as of the Effective Date after giving pro forma effect to the transactions contemplated by this Agreement, the repayment in full of existing Debt and the funding of the initial Standby Term Loans on the Effective Date and (iv) projections of the consolidated balance sheets, results of operations and cash flow for the 2022 Fiscal Year on a Fiscal Month basis and for each other Fiscal Year ending prior to the Termination Date on a Fiscal Year basis.
(n) No action, suit, investigation, litigation or proceeding shall be threatened or pending in any court or before any arbitrator or governmental instrumentality that in Agent’s judgment could reasonably be expected to have a Material Adverse Effect.
(o) Agent shall have received satisfactory evidence that the Obligors have received all governmental and third party consents and approvals as may be appropriate in connection with the Loans and the transactions contemplated by this Agreement.
(p) The Intercreditor First Amendment to the Third Amended and Restated Loan and Security Agreement shall be in form and substance satisfactory to Agent, shall have been duly executed and delivered to Agent by each of the signatories thereto, thereto and each of the Obligors shall be in form and substance satisfactory to each Lender in their sole discretioncompliance with all terms thereof.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, substance satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Wxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082007.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(k) Agent shall have received, each in form and substance satisfactory to Agent, (i) a pro forma balance sheet of Borrowers dated as of the Closing Date and giving effect to the consummation of the Spin-Off and the retention of the Potlatch Indebtedness, (ii) financial projections of the Borrowers, evidencing each Borrower’s ability to comply with the financial covenants set forth herein, and (c) interim financial statements for the Borrowers as of a date not more than 30 days prior to the Closing Date.
(l) Agent shall have received duly executed copies of the Spin-Off Documents, the terms and conditions of which shall be satisfactory to Agent.
(m) Agent shall have received all documents, instruments and other agreements related to or executed in connection with the Potlatch Indebtedness, the terms and conditions of which shall be satisfactory to Agent.
(n) Agent shall have received evidence, in form and substance satisfactory to Agent, that (i) the “Separation” (as defined in the Separation Agreement) shall have occurred, (ii) Clearwater and its Subsidiaries have taken all actions and proceedings required by the Separation Agreement, applicable law and regulation for the “Distribution” (as defined in the Separation Agreement) to occur, and (iii) no further action on the part of any Person or Governmental Authority shall be necessary for the consummation of Spin-Off, other than the transfer by Clearwater of $50,000,000 to Retainco prior to the “Distribution” (as defined in the Separation Agreement).
(o) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that in Agent’s good faith judgment (i) could reasonably be expected to have a material adverse effect on any Borrower’s business, assets, properties, liabilities, operations, condition or prospects, or could impair any Borrower’s ability to perform satisfactorily under this Agreement and the other Loan Documents; or (ii) could reasonably be expected to materially and adversely affect this Agreement, the Spin-Off Documents, or the transactions contemplated hereby or thereby.
(p) No terms of Sections 7, 8, 9, 10, or 11 have been violated between the date of this Agreement and the Closing Date.
(q) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nr) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00050,000,000.
(s) The initial Loans hereunder shall have been funded on or before February 28, 2009.
Appears in 1 contract
Samples: Loan and Security Agreement (Clearwater Paper Corp)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document identified on the closing checklist attached hereto as Exhibit K shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Except as otherwise provided in Section 10.1.9, Agent shall have received acknowledgments of all filings or recordations that are necessary to perfect its Liens in the CollateralCollateral (other than Collateral owned by the UK Obligors) in form appropriate for filing or recordation, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are (or when UCC financing statements are filed, will be) the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent and each Collateral Agent.
(d) Agent shall have received certificates, in form and substance reasonably satisfactory to itAgent and the Collateral Agents, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is the Company and its Restricted Subsidiaries, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with correct in all agreements and conditions to be satisfied by it under the Loan Documentsmaterial respects.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions (in the case of the UK Obligors, shareholder and board resolutions) authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent and Collateral Agents may conclusively rely on this certificate until it is they are otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx Xxxxxxx LLP, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor (other than a UK Obligor), issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(h) Agent and each Collateral Agent shall have received copies of policies or certificates of evidence that all insurance for the insurance policies carried by Borrowers, all in compliance with required to be maintained pursuant to the Loan DocumentsDocuments has been obtained and is in effect, together with endorsements the certificates of insurance, naming Agent as lender loss payee or additional insuredAgent, on behalf of the Secured Parties, as appropriatean additional insured or loss payee, each in form as the case may be, under all insurance policies maintained with respect to the assets and substance satisfactory to Agentproperties of the Obligors that constitute Collateral.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all documented fees and out-of-pocket expenses to be paid to Agent Agent, Collateral Agents and Lenders on the Closing Date (including, without limitation, per diem costs and other charges of field examiners of the Collateral Agents) to the extent invoiced prior to the Closing Date.
(lj) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent Collateral Agents shall have received a Borrowing Base Certificate prepared as of last day of the last month prior to the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practicesherewith, Excess Availability shall be at least $20,000,00060,000,000.
(k) Lenders shall be reasonably satisfied with Obligors’ capital structure and existing Debt (including the amount and terms of the Existing Senior Secured Notes) and shall have received evidence reasonably satisfactory to Agent and each Collateral Agent of the termination of the Company’s existing senior credit facility and the prepayment in full of Debt thereunder (including satisfactory duly executed payoff letters and authorization to file UCC-3 termination statements).
(l) Agent shall have received satisfactory evidence that the Borrowers have received proceeds of the Existing Senior Secured Notes in an aggregate amount not less than $275,000,000.
(m) Agent and Collateral Agents shall have received, in form and substance reasonably satisfactory to Agent and Collateral Agents, copies of (i) the financial projections of the Company and (ii) interim financial statements for the Company as of a date not more than 40 days prior to the Closing Date.
(n) Agent shall have received all documentation and other information requested by Lenders that is required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act.
Appears in 1 contract
Samples: Loan Agreement (Solo Cup CO)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor Borrower shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each ObligorBorrower, certifying as to (i) that attached copies of such ObligorBorrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shownDocuments; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facilityDocuments; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor Borrower in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Xxxxxxxx, Loop & Xxxxxxxx, LLP, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory to AgentAgent concerning enforceability under the laws of the State of New York and other customary matters (including, without limitation, no conflicts with the Existing Indenture, the Purchase and Sale Agreement, Receivables Purchase Agreement and other contracts) as well as opinions under the laws of the State of Ohio and the State of Delaware as to organization, existence, good standing, perfection and validity of security interests, and other customary matters (including, without limitation, no conflicts with the Existing Indenture, the Purchase and Sale Agreement, Receivables Purchase Agreement and other contracts).
(g) Agent shall have received copies of the charter documents of each ObligorBorrower, certified by the Secretary of State or other appropriate official of such ObligorBorrower’s jurisdiction of organization. Agent shall have received good standing certificates for each ObligorBorrower, issued by the Secretary of State or other appropriate official of such ObligorBorrower’s jurisdiction of organization and each jurisdiction where such ObligorBorrower’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of ObligorsBorrowers, including a roll-forward of its previous field examination, with results satisfactory to AgentAgent and including evidence that Borrowers have received all governmental and third party consents and approvals necessary to consummate the transactions contemplated hereunder. No material adverse change in the business, assets, properties, liabilities, operations, Properties, condition or prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral Borrower shall have occurred since September 30December 31, 20082010.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nk) Agent shall have received a Borrowing Base Certificate prepared as of March 31, 2011.
(l) Agent shall have received, each in form and substance satisfactory to them, (a) 2 year projections of Borrowers and Subsidiaries, dated as of the Closing Date. Upon giving effect , evidencing Borrower’s ability to comply with the availability requirements set forth in the loan documentation, and (c) interim financial statements for Borrowers as of May 31, 2011.
(m) Borrowers shall have paid to the initial funding Agent all accrued and unpaid interest and fees under the Existing Loan and Security Agreement.
(n) Agent shall have received an executed copy of Loans the reaffirmation of the Intercreditor Agreement in form and issuance substance acceptable to Agent.
(o) The execution and delivery or satisfaction of Letters each of Creditthe other agreements, documents or other instruments or conditions set forth in the closing checklist attached hereto as Exhibit F (the “Closing Checklist”), in form, substance and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.manner reasonably satisfactory to Agent;
Appears in 1 contract
Samples: Loan and Security Agreement (Cooper Tire & Rubber Co)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Each of the following conditions has been satisfiedis a condition precedent to Lender making the initial Loans hereunder:
(a) Notes Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by any existing lenders other than Permitted Indebtedness to Borrower of their respective financing arrangements with Borrower 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 Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of the Commitment and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a review of the Records and such other information with respect to the Collateral as Lender may require;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem reasonably 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;
(f) 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 that can be perfected by a UCC filing with Borrower's state of incorporation (other than Permitted Liens);
(g) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation or organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(j) Lender shall have received, in form and substance satisfactory to Lender, a guarantee of the Obligations from each Guarantor;
(k) The Merger Agreement shall have been duly executed by Borrowers the parties thereto and delivered to Lender;
(l) Lender shall have received in form and substance satisfactory to Lender, a Collateral Assignment and Pledge of Note in form and substance satisfactory to Lender covering the promissory note to Borrower from Espotting Media, Inc., dated February 9, 2004, in the principal amount of $2,000,000;
(m) Lender shall have received, in form and substance satisfactory to Lender, a Landlord Agreement from landlord of Borrower's location at 5220 Summerlin Commons Blvd., Fort Myers, Florida and 505 Eighth Avexxx, Xxxxx 000, New York, New York; xxx such other Colxxxxxxx Xxxxxx Xxxxxxxxxx xx Xxxxxx xxxxx xxxxxxt, each Lender that requests issuance of a Note. Each in form and substance satisfactory to Lender; and
(n) the other Loan Document Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesLender, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsLender.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until hereunder on the date (“Closing Date”) that , unless each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers Xxxxxxxxx and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of received, in proper form for filing or recording, all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens, to the extent requested by Agent.
(c) Agent shall have received all certificates or instruments representing or evidencing all Pledged Interests required by Section 7.4.1 accompanied by all necessary instruments of transfer or assignment, duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agentblank.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower each Borrower, on an individual basis, is Solvent and the Obligors, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 that are qualified by materiality are true and correctcorrect and the representations and warranties set forth in Section 9 that are not qualified by materiality are true and correct in all material respects; and (iv) such Borrower each Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each ObligorObligor (other than an Immaterial Subsidiary), certifying (i) that such Obligor’s Organic Documents have not been modified or the attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received (i) a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPRuskin Moscou Xxxxxxxxxx, as well as P.C. LLP in form and substance satisfactory to Agent and (ii) a written opinion of any local counsel to Borrowers and Parent in Utah and MichiganObligors as Agent may reasonably request, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each ObligorObligor (other than an Immaterial Subsidiary), issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such ObligorXxxxxxx’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(li) The Intercreditor Jiffy Acquisition shall be consummated in accordance with the Jiffy Purchase Agreement shall have been duly executed and delivered to Agent by each of the signatories theretowithout any amendments, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtorsmodifications, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect waivers or consents thereto that are not reasonably acceptable to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000Agent.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.. 133315237_8
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches of the Obligors and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, reasonably satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunderhereunder on the Closing Date, (i) such Borrower is the Borrowers and their Subsidiaries, on a consolidated basis, are Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and warranties set forth in Section 9 are true and correct; correct in all material respects (except that any representation and (iv) such Borrower has complied with warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all agreements and conditions to be satisfied by it under the Loan Documentsrespects).
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Lxxxxx & Wxxxxxx, LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance reasonably satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents.
(i) Each Borrower shall have provided, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance reasonably satisfactory to AgentAgent and each Lender, all documentation and other information as Agent or any Lender reasonably requests at least 10 Business Days prior to the Closing Date in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Agent and Lenders in relation to such Borrower.
(ij) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results reasonably satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral event shall have occurred that has had, or could reasonably be expected to have, a Material Adverse Effect since September 30December 31, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)2019.
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date that have been invoiced to the Borrowers at least 3 Business Days prior to the Closing Date.. 133315237_8
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared Report as of the Closing DateJuly 31, 2020. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,0007,000,000.
Appears in 1 contract
Samples: Loan Agreement (Inari Medical, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers Borrower hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers Borrower and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received (i) acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted LiensLiens and (ii) all Lien Waivers reasonably requested by Agent.
(c) Agent shall have received, each in form and substance reasonably satisfactory to Agent, (i) financial projections of Borrower evidencing Borrower’s ability to comply with the requirements set forth in Section 10.3 hereof, and (ii) interim financial statements for Borrower dated as of a date not more than 45 days prior to the Closing Date.
(d) Agent shall have received (i) duly executed agreements establishing each the Dominion Account and related lockboxlockbox and (ii) duly executed Deposit Account Control Agreements as required pursuant to Section 8.5, each in form and substance, and with financial institutions, satisfactory to Agent.
(de) Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects (to the extent not otherwise qualified by the concept of “materiality”); and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Xxxxxx Godward Kronish LLP, as well as local counsel to Borrowers and Parent in Utah and MichiganBorrower, each in form and substance reasonably satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationqualification except to the extent the failure to so qualify would not reasonably be expected to cause a Material Adverse Effect.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrower, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ij) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results examination reasonably satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers Borrower shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateJune 30, 2009. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers Borrower of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, the sum of Availability plus the amount of domestic cash in deposit accounts of Borrower and its Domestic Subsidiaries not subject to a Lien (other than Liens in favor of Agent) shall be at least $20,000,00040,000,000.
(m) As of the Closing Date, and other than as set forth on Schedule 9.1.16 of the Disclosure Letter, there shall exist no pending or to the best of Borrower’s knowledge threatened action, suit, proceeding, or counterclaim by any Person or, to the best of Borrower’s knowledge, investigation by any Governmental Authority which could reasonably be expected to have a Material Adverse Effect.
(n) Borrower shall have obtained all governmental and third party consents and approvals as may be necessary or appropriate in connection with this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Samples: Loan and Security Agreement (Leapfrog Enterprises Inc)
Conditions Precedent to Initial Loans. In addition The obligation of the Lender to make the Term Loan requested to be made by it hereunder is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, satisfaction or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each waiver by the Lender of the following conditions has been satisfiedprecedent:
(a) Notes The Lender shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been received:
(i) this Agreement, duly executed and delivered to Agent by each an authorized officer of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.Borrower; and
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; the Security Agreement, the Pledge Agreement, and the Guaranty, in each case executed and delivered by the Loan Parties party thereto;
(iii) a closing certificate, in the representations and warranties set forth in Section 9 are true and correct; and form provided by Lender, duly executed by Borrower;
(iv) share certificates for the Trust Preferred Shares that are pledged to the Lender as Collateral for the Obligations pursuant to the Pledge Agreement, together with an undated stock power for each such Borrower has complied with all agreements and conditions to be satisfied certificate executed in blank by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligorthe Borrower; and
(v) a fully-executed copy of the Purchase Agreement and all schedules and exhibits thereto;
(b) the initial capitalization of the Borrower, certifying by the contribution by Parent of Trust Preferred Shares with a market value of not less than $5,000,000 and Cash Equivalents in the amount of not less than $5,832,535;
(ic) that attached copies The Lender shall have received satisfactory projections of such Obligor’s Organic Documents are true the Borrower through the Maturity Date;
(d) All governmental and completethird party approvals necessary in connection with the Acquisition, the continuing operations of the Loan Parties and their Subsidiaries, and the transaction contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without amendment except as shown; any action being taken or threatened by any competent authority that would restrain, prevent, or otherwise impose materially adverse conditions on the Acquisition or the financing contemplated hereby;
(iie) that an attached copy The Lender shall have received results of resolutions authorizing execution a recent lien search in each of the jurisdictions where the Loan Parties are organized and delivery the assets of the Loan Documents is true and completeParties are located, and that such resolutions are searches confirm the priority of the Liens in full force favor of the Lender and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to reveal no liens on any of the title, name and signature assets of each Person authorized to sign the Loan Documents. Agent may conclusively rely on Parties, except for liens permitted under this certificate until it is otherwise notified by the applicable Obligor in writing.Agreement;
(f) Agent The Lender shall have received payment, in immediately available funds of a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a rollnon-forward of its previous field examination, with results satisfactory to Agent. No material adverse change refundable origination fee in the business, operations, Properties, prospects or condition (financial or otherwise) amount of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form $25,000 and substance satisfactory all other fees required to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Groupbe paid, and all expenses for which invoices have been presented (including the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders of legal counsel), on or before the Closing Date.
(lg) The Intercreditor Agreement Lender shall have been duly executed and delivered to Agent by each of the signatories theretoreceived, and be in form and substance reasonably satisfactory to it, a certificate of each Lender in their sole discretion.Loan Party, certified by a secretary of such Loan Party, dated the Closing Date, including:
(mi) Agent a certificate of formation, organization, or incorporation, as applicable, of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party;
(ii) by-laws, operating agreements, and partnership agreements, as applicable, for each Loan Party as in effect on the date on which the resolutions referred to below were adopted;
(iii) resolutions of the governing body of each Loan Party approving the transaction and each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate, partnership, or limited liability company action;
(iv) a certification that the names, titles, and signatures of the officers of each Loan Party authorized to sign each Loan Document to which it is or is to be a party and other documents to be delivered hereunder and thereunder are true and correct;
(v) a long-form good standing certificate for each Loan Party from its jurisdiction of organization; and
(vi) a good standing certificate for each Loan Party from each state where it is qualified to do business;
(h) The Lender shall have received a listing the legal opinion of Winthrop & Weinstine, counsel to the Borrowers’ Account DebtorsBorrower and its Subsidiaries, including in form and substance acceptable to the name and address of each such Account Debtor.Lender;
(ni) Agent The Lender shall have received reasonably satisfactory evidence that each document (including any Uniform Commercial Code financing statement and appropriate filings with the United States Patent and Trademark Office or United States Copyright Office) required by the Loan Documents or any Requirement of Law or reasonably requested by the Lender to be filed, registered, or recorded in order to create in favor of the Lender a Borrowing Base Certificate prepared as perfected first priority Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted under this Agreement), shall have been properly filed (or provided to the Lender) or executed and delivered in each jurisdiction;
(j) The Lender shall have received evidence of insurance coverage in form, scope and substance satisfactory to the Lender and otherwise in compliance with the terms of Section 5.10 and Section 6.06 of this Agreement; and
(k) The Lender shall have received, at least three (3) Business Days prior to the Closing Date. Upon giving effect , (i) all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, and (ii) to the initial funding of Loans and issuance of Letters of Creditextent the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), and a customary FinCEN beneficial ownership certification in relation to the payment by Borrowers of all fees and expenses incurred Borrower, in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be each case requested at least $20,000,000ten Business Days prior to the Closing Date.
Appears in 1 contract
Samples: Loan Agreement (Air T Inc)
Conditions Precedent to Initial Loans. In addition The obligation of each Lender to make its extension of credit to be made hereunder on the Closing Date is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, satisfaction (or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”waiver by Agent) that each of the following conditions has been satisfiedprecedent:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockboxreceived, in form and substancesubstance satisfactory to it, (a) a pro forma balance sheet of Borrowers dated as of the date of closing and giving effect to the US Footwear Acquisition, (b) financial projections of Borrowers, giving effect to the US Footwear Acquisition, evidencing Borrowers' ability to comply with Section 10.3, and with (c) interim financial institutionsstatements for Borrowers and the Target as of January 31, satisfactory to Agent2021.
(d) Agent shall have received evidence, in form and substance reasonably satisfactory to Agent, that after giving pro forma effect to the Loans made hereunder on the Closing Date, the Revolving Loans and other extensions of credit made under the Revolving Loan Facility on the Closing Date and the consummation of the US Footwear Acquisition, (i) EBITDA, for the 12 month period ending on December 31, 2020, using pro forma adjustments satisfactory to Agent, was equal to or greater than $57,500,000 and (ii) the Total Leverage Ratio for Parent and its Subsidiaries, on a consolidated basis, for the 12 month period ending on December 31, 2020, was less than or equal to 3.75:1.0.
(e) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans, the Revolving Loans under the Revolving Loan Facility, the consummation of the US Footwear Acquisition and the transactions hereunder, (i) such Borrower Obligor is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s 's Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person those Person(s) that are authorized to sign to, and have signed, the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders Lender shall not be required to amend and restate the Original LSA in its entirety as provided herein and to fund any requested Loan, issue any Letter of Credit, Credit or otherwise extend credit to Borrowers Borrower hereunder, until the date (“Closing "Effective Date”") that each of the following conditions has been satisfied:
(a) Notes a Revolver Note and an CAPX Loan Note shall have been executed by Borrowers Borrower and delivered to each Lender that requests issuance of a NoteLender. Each other Loan Document shall have been duly executed and delivered to Agent Lender by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent Lender shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent Lender that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent Lender shall have received duly executed agreements establishing each Dominion Blocked Account and related lockbox, in form and substance, and with financial institutions, satisfactory to AgentLender.
(d) Agent Lender shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent Lender shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s 's Organic Documents are true and complete, and in full force and effect, without amendment except as shown; , (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; , and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent Lender may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent Lender shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local legal counsel to Borrowers and Parent in Utah and Michigan, each of Obligors in form and substance satisfactory to AgentLender.
(g) Agent Lender shall have received copies of the charter documents of each Obligor, certified as appropriate by the Secretary of State or other appropriate another official of such Obligor’s 's jurisdiction of organization. Agent Lender shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization and each jurisdiction where such Obligor’s 's conduct of business or ownership of Property necessitates qualification.
(h) Agent Lender shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrower, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers Borrower shall have paid all fees and expenses to be paid to Agent and Lenders Lender on the Closing Effective Date.
(lj) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Effective Date. Upon giving effect to all Loans (including the initial funding of Loans hereunder) and all Letters of Credit (including the initial issuance of Letters of CreditCredit hereunder), and the payment by Borrowers Borrower of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000500,000.
(k) Lender shall have received a duly executed Lien Waiver with respect to Borrower's leased premises at 8655 Commerce Drive, Suite 105, Southaven, Mississippi.
(x) Lender shall have received a duly executed reaffirmation and confirmation agreement in form and substance satisfactory to Lender from the Parent Guarantor with respect to its obligations under its Guaranty and the Debt Subordination Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (First Aviation Services Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers Borrower hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Subject to Sections 10.1.10, 10.1.11 and 10.1.12, Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Subject to Sections 10.1.10, 10.1.11 and 10.1.12, Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, reasonably satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Obligor certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower Obligor is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Dxxxx Xxxxxx LLP, as well as any local counsel to Borrowers and Parent in Utah and MichiganObligor or Agent, each in form and substance reasonably satisfactory to Agent.. DM3\8972795.2
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization, that is to deliver a Mortgage pursuant to Section 10.1.12(a). Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowersthe Obligors, all in compliance with the Loan Documents.
(i) Each Obligor shall have provided, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to AgentAgent and each Lender, all documentation and other information as Agent or any Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Obligor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Agent and Lenders in relation to such Obligor.
(ij) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor the Obligors taken as a whole or in the quality, quantity or value or a material portion of any the Collateral shall have occurred since September 30December 31, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)2021.
(k) Borrowers Borrower shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared Report as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of CreditJuly 31, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,0002022.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition No Lender shall be obligated to make its Pro Rata Share of the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of CreditInitial Loans, or otherwise extend credit to Borrowers take, fulfill, or perform any other action hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to itAgent and Lenders (the date on which Lenders make the Initial Loans, from the "Closing Date"):
(a) a knowledgeable Senior Officer counterpart of this Agreement duly executed by each Loan Party, each Lender and Agent;
(b) a certificate duly executed by the Secretary of each Borrower Loan Party, the form of which is attached as Exhibit A, providing verification of incumbency and certifying that, after giving effect as to the initial Loans and transactions hereunder, attaching (i) such Borrower is Solvent; Loan Party's board resolutions approving the transactions contemplated by the Loan Documents and (ii) no Default or Event such Loan Party's formation documents certified by the Secretary of Default exists; State of such Loan Party's state of formation as of a recent date acceptable to Agent and such Loan Party's governing documents;
(iiic) Notes duly executed by Borrower in favor of each Lender that has requested a Note;
(d) filed copies of UCC financing statements, collateral assignments, and termination statements, with respect to the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.Collateral, as Agent shall request;
(e) Agent shall have received a certificate certificates of a duly authorized officer of insurance evidencing the insurance coverage and satisfactory additional insured and lender loss payable endorsements, in each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except case as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect required pursuant to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.Section 6.4;
(f) Agent shall copies, dated as of a recent date acceptable to Agent, of UCC, judgment, intellectual property, bankruptcy and tax lien search results demonstrating that there are no Liens on the Collateral other than Permitted Liens;
(g) a certificate of status/good standing of each Loan Party from the jurisdiction of such Loan Party's organization and a certificate of foreign qualification from each jurisdiction where such Loan Party's failure to be so qualified would reasonably be expected to have received a written Material Adverse Effect, in each case certified as of a recent date acceptable to Agent;
(h) an Access Agreement for each leased location or third party location to the extent required pursuant to Section 6.6;
(i) an executed legal opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPLoan Parties' counsel, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.;
(gj) Agent shall have received copies an Automatic Payment Authorization Agreement, duly executed by Borrower;
(k) a Perfection Certificate completed and duly executed by each Loan Party;
(l) one or more Account Control Agreements, duly executed by the applicable Loan Parties and the applicable depository or financial institution, to the extent required pursuant to Section 6.10(a);
(m) a Pledge Agreement, duly executed by each Loan Party, together with the certificates and instruments required to be delivered in connection therewith and related undated powers and endorsements duly executed in blank;
(n) a Warrant in favor of each Term Loan Lender (or its Affiliate) for such Term Loan Lender's Pro Rata Share of the charter documents number of shares of Stock of Borrower described in Section 2.7, duly executed by Borrower;
(o) the Intellectual Property Security Agreement required by Section 3.1, duly executed by each Obligor, certified Loan Party;
(p) a pay-off letter satisfactory to Agent and duly executed by the Secretary Existing Lender, confirming that all of State or the Indebtedness and other appropriate official obligations owed under the Existing Indebtedness will be repaid in full from the proceeds of the Initial Loans and all Liens upon any Loan Party's Property in favor of the Existing Lender shall be terminated immediately upon such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.payment;
(hq) Agent shall have received copies a duly executed initial Borrowing Base Certificate from Borrower, dated the Closing Date, reflecting information concerning Eligible Accounts as of policies or certificates of insurance April 30, 2016;
(r) current Compliance Certificate in accordance with Section 6.3;
(s) monthly financial statements for the insurance policies carried period ending May 31, 2016;
(t) an audit of the Collateral, the results of which shall be satisfactory to Bank;
(u) all fees required to be paid by Borrowers, all in compliance with Borrower under the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent Borrower shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to reimbursed Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed for all fees, costs and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared expenses presented as of the Closing Date. Upon giving effect ; and
(v) all other documents and instruments as Agent or any Lender may reasonably deem necessary or appropriate to effectuate the initial funding intent and purpose of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Cas Medical Systems Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“"Closing Date”") that each of the following conditions has been satisfied:satisfied (or waived in accordance with Section 14.1.1(d)(i) hereof):
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of (i) all filings or recordations necessary to perfect its Liens in the CollateralCollateral or arrangements reasonably satisfactory to Agent for such filings and recordations shall have been made (and all filing and recording fees and taxes in connection therewith shall have been duly paid or arrangements reasonably satisfactory to Agent for the payment of such fees and taxes shall have been made) and (ii) UCC, as well as UCC PPSA and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the CollateralCollateral (including estoppel letters with respect to Canadian Domiciled Obligors), except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, reasonably satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans made on the Closing Date and transactions hereunderTransactions, (i) such Borrower is the Company and its Subsidiaries on a Consolidated basis, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that are already qualified or modified by materiality in the text thereof and except for representations and warranties that expressly relate to an earlier date); and (iv) such Borrower has Obligors have complied with all agreements and conditions to be satisfied by it on or before the Closing Date under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s 's Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPWeil, as well as local counsel to Borrowers Gotshal & Xxxxxx LLP and Parent in Utah and Michigan, each Dentons Canada LLP in form and substance reasonably satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, and in the case of U.S. Domiciled Obligors certified by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization. Agent shall have received good standing certificates or similar instrument for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, as well as all necessary endorsements naming Agent as a lender loss payee with respect to the Collateral, as the case may be, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) No event shall have occurred or circumstance exist since December 31, 2016 that, either individually or in the aggregate, has or would reasonably be expected to have a Material Adverse Effect. Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examinationexamination and inventory appraisal, with results reasonably satisfactory to Agent. No material adverse change in changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by Agent or the business, operations, Properties, prospects or condition Lenders regarding the Obligors after the date such due diligence investigation has completed that (financial or otherwisei) of any Obligor either individually or in the qualityaggregate, quantity would reasonably be expected to have a Material Adverse Effect or value of any Collateral (ii) purports to materially adversely affect the Transactions, and nothing shall have occurred since September 30come to the attention of the Lenders to lead them to reasonably believe that (A) the Information Memorandum delivered in connection with the Term Loan Credit Agreement was or has become misleading, 2008incorrect or incomplete in any material respect or (B) the Transactions will have a Material Adverse Effect.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all reasonable and documented fees and expenses to be paid to Agent and Lenders on the Closing Date (provided that invoices for expenses shall have been delivered to Borrower Agent three Business Days prior to the Closing Date).
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nk) Agent shall have received a Borrowing Base Certificate prepared Report as of the Closing DateJune 30, 2017. Upon Agent shall have received a certificate of a duly authorized Senior Officer of each Borrower demonstrating that upon giving effect to the initial funding of Loans and Loans, issuance of Letters of CreditCredit and the funding of the Term Loans, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Total Availability shall be at least $20,000,00050,000,000.
(l) Agent shall have received evidence reasonably satisfactory to Agent that Company shall have consummated the transactions contemplated by the Term Loan Credit Agreement and that the proceeds of the Term Loans received by the Company shall be in an aggregate principal amount not less than $225,000,000.
(m) Agent shall have received (i) pro forma consolidated financial statements of the Company and its Consolidated Subsidiaries giving effect to the initial funding of Loans, issuance of Letters of Credit and the funding of the Initial Term Loans (as defined in the Term Loan Credit Agreement) on or before the Closing Date, and forecasts prepared by management of the Company (each in form reasonably satisfactory to Agent and evidencing Borrowers' ability to comply with the financial covenant set forth in Section 10.3) of balance sheets, income statements and cash flow statements on a monthly basis for the first year following the Closing Date and on an annual basis for each year thereafter during the term of this Agreement, and (ii) the annual (or other audited) financial statements of the Company and its Consolidated Subsidiaries for the Fiscal Years ended 2014, 2015 and 2016 and all amendments thereto).
(n) There shall be no action, suit, investigation, litigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or governmental instrumentality that in Agent's reasonable judgment (a) either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (b) would reasonably be expected to materially and adversely affect this Agreement or the transactions contemplated thereby.
(o) Agent shall have received evidence that the Amended and Restated Credit Agreement, dated as of January 2, 2014, by and among, inter alios, the Company, Xxxxx Fargo Bank, National Association, as administrative agent and the lenders party thereto (as amended prior to the date hereof, the "Existing Credit Agreement") has been, or concurrently with the initial Loans on the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the initial Loans on the Closing Date are being, released.
(p) Agent shall have received, at least three Business Days prior to the Closing Date, all documentation and other information required by Governmental Authorities under applicable "know your customer" and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing at least ten Business Days prior to the Closing Date by the Lenders.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers Borrower hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers Borrower and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received the Related Real Estate Documents for the Real Estate located at 0000 Xxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxx, as more particularly described in Schedule 7.3.
(d) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(de) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; and (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct.
(f) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Guarantor certifying that, after giving effect to the initial Loans and transactions hereunder, (i) if such Guarantor is a Material Guarantor, such Guarantor is Solvent; and (ivii) such Borrower has complied with all agreements the representations and conditions to be satisfied warranties set forth in Section 6 of the Guaranty and Security Agreement dated as of the date hereof made by it under the Loan DocumentsGuarantors in favor of Lenders and Agent are true and correct.
(eg) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fh) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP, as well as any local counsel to Borrowers and Parent in Utah and MichiganBorrower, each Guarantors or Agent, in form and substance reasonably satisfactory to Agent.
(gi) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hj) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrower, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ik) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082007.
(jl) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers Borrower shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the last day of the Fiscal Month most recently ended prior to the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers Borrower of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Excess Availability shall be at least $20,000,00025,000,000.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition At the time of the making of the initial Loans hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to the conditions set forth initial Loans (including, without limitation, Borrower's obligations to reimburse the reasonable fees and expenses of counsel to the Administrative Agent and any fees and expenses payable to the Administrative Agent as previously agreed with Borrower), shall have been paid in Section 6.2full, Lenders and the Administrative Agent shall not be required have received the following, in form and substance reasonably satisfactory in all respects to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedAdministrative Agent:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been the duly executed and delivered to Agent by each counterparts of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.this Agreement;
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateralduly completed Revolving Credit Notes evidencing the Revolving Credit Commitments, as well as UCC the duly completed Swing Line Note evidencing the Swing Line Commitment, and Lien searches and other evidence satisfactory to Agent that such Liens are duly completed Term Notes evidencing the only Liens upon the Collateral, except Permitted Liens.Term Loan Commitments;
(c) Agent shall have received all required, duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.Subsidiary Guaranties;
(d) certificates of the Secretary or Assistant Secretary of the Borrower attaching and certifying copies of the resolutions of the board of directors of the Borrower, and each Subsidiary Guarantor providing a required Subsidiary Guarantee, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) certificates of the Secretary or an Assistant Secretary of the Borrower certifying (i) the name, title and true signature of each officer of the Borrower executing the Credit Documents, and (ii) the bylaws of the Borrower and each Subsidiary Guarantor;
(f) certified copies of the certificate or articles of incorporation of the Borrower and each of its Subsidiaries certified by the Secretary of State and by the Secretary or Assistant Secretary of the Borrower or such Subsidiaries, as appropriate, 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 the Borrower and each of its Subsidiaries, and each other jurisdiction where the ownership of Property or the conduct of its business require the Borrower or its Subsidiaries to be qualified, except where a failure to be so qualified would not have a Materially Adverse Effect;
(g) closing certificate of Borrower in substantially the form of Exhibit G attached hereto and appropriately completed;
(h) the favorable opinion of corporate counsel to the Consolidated Companies as to certain matters, in the form of Exhibit H, in each case addressed to the Administrative Agent and each of the Lenders;
(i) copies of all documents and instruments, including all consents, authorizations and filings, required under the articles or certificate of incorporation and bylaws or other organizational or governing documents, under any Requirement of Law or by any material Contractual Obligation of the Consolidated Companies, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall have received certificatesbe in full force and effect;
(j) any other document, opinion or certificate reasonably requested by the Administrative Agent and the Lenders assuring the Administrative Agent and the Lenders that all corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents are in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is SolventLenders; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).and
(k) Borrowers a certificate from an Executive Officer of the Borrower certifying that the first Advance under the Revolving Credit Commitments shall have paid be used to cancel and pay in full all fees Prior Revolving Credit Debt and expenses that the proceeds of the Term Loan Facility shall be used to be paid to Agent cancel and Lenders on the Closing Date.pay in full all Prior Term Debt; and
(l) The Intercreditor Agreement shall have been duly executed the acquisition and delivered to Agent by each plan of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect merger documents with respect to the initial funding acquisition of Loans Xxxxx'x Roadhouse, Inc. and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000other documents with respect thereto that Administrative Agent reasonably requests.
Appears in 1 contract
Samples: Credit Agreement (CBRL Group Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, Loan or otherwise extend credit to Borrowers Borrower hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:satisfied (or waived in accordance with Section 15.1.1(d)(i) hereof):
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Administrative Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Administrative Agent shall have received acknowledgments of all (i) filings or recordations necessary to perfect its Liens in the Collateral, as well as Collateral or arrangements reasonably satisfactory to Administrative Agent for such filings and recordations shall have been made (and all filing and recording fees and taxes in connection therewith shall have been duly paid or arrangements reasonably satisfactory to Administrative Agent for the payment of such fees and taxes shall have been made) and (ii) UCC and Lien searches and other evidence reasonably satisfactory to Administrative Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens, after giving effect to the refinancing of the Indebtedness outstanding under the Existing Credit Agreement.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent[Reserved].
(d) Administrative Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans Initial Term Loan and transactions hereunderthe Transactions, (i) such Borrower is and its Subsidiaries, on a Consolidated basis, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof); and (iv) such Borrower has Obligors have complied with all agreements and conditions to be satisfied by it on or before the Closing Date under the Loan Documents.. US-DOCS\135051485.13
(e) Administrative Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Administrative Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Administrative Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxxxxx US LLP, as well as any local counsel to Borrowers and Parent in Utah and MichiganBorrower, each in form and substance reasonably satisfactory to Administrative Agent.
(g) Administrative Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Administrative Agent shall have received good standing certificates or similar instrument for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(h) Administrative Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, as well as all necessary endorsements naming Administrative Agent as a lender loss payee with respect to the Collateral and additional insured under liability insurance, as the case may be, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ia) No event shall have occurred or circumstance exist since December 31, 2019 that, either individually or in the aggregate, has or would reasonably be expected to have a Material Adverse Effect. Administrative Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examinationNo changes or developments shall have occurred, with results satisfactory to Agent. No material adverse change in and no new or additional information, shall have been received or discovered by Administrative Agent or the business, operations, Properties, prospects or condition Lenders regarding the Obligors after the date such due diligence investigation has completed that (financial or otherwisei) of any Obligor either individually or in the qualityaggregate, quantity would reasonably be expected to have a Material Adverse Effect or value of any Collateral (ii) purports to materially adversely affect the Transactions, and nothing shall have occurred since September 30come to the attention of the Lenders to lead them to reasonably believe that (A) the Confidential Information Memorandum regarding Borrower and its Subsidiary and dated December 8, 20082020, was or has become misleading, incorrect or incomplete in any material respect or (B) the Transactions will have a Material Adverse Effect.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers Borrower shall have paid all reasonable and documented fees and expenses to be paid to Administrative Agent and Lenders on the Closing Date (provided that invoices for expenses shall have been delivered to Borrower three Business Days prior to the Closing Date).
(j) [Reserved].
(k) Administrative Agent shall have received (i) a true, correct and complete copy of a consent and/or an amendment to the ABL Credit Agreement that is in form and substance reasonably satisfactory to Administrative Agent and (ii) evidence reasonably satisfactory to Administrative Agent that the Commitments (as defined in the ABL Credit Agreement) shall be in an aggregate principal amount of up to $135,000,000.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Administrative Agent shall have received a listing (i) pro forma consolidated and consolidating financial statements of the Borrowers’ Account Debtors, including the name Borrower and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon its Consolidated Subsidiaries giving effect to the initial funding of Loans the Initial Term Loan on or before the Closing Date and issuance (ii) the annual (or other audited) financial statements of Letters Borrower and its Consolidated Subsidiaries for the Fiscal Years ended 2017, 2018 and 2019 and all amendments thereto.
(m) There shall be no action, suit, investigation, litigation or proceeding pending or, to the knowledge of CreditXxxxxxxx, threatened in any court or before any arbitrator or governmental instrumentality that in Administrative Agent’s reasonable judgment (a) either individually or in the US-DOCS\135051485.13 aggregate, would reasonably be expected to have a Material Adverse Effect or (b) would reasonably be expected to materially and adversely affect this Agreement or the transactions contemplated thereby.
(n) Administrative Agent shall have received evidence that the Term Loan and Security Agreement, dated as of August 29, 2017, by and among, inter alios, Xxxxxxxx, Xxxxxxx Xxxxx Bank USA, as administrative agent and the payment by Borrowers of lenders party thereto (as amended prior to the date hereof, the “Existing Credit Agreement”) has been, or concurrently with the initial Loans on the Closing Date is being, terminated and all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practicesLiens securing obligations under the Existing Credit Agreement have been, Availability or concurrently with the initial Loans on the Closing Date are being, released.
(o) Administrative Agent shall be have received, at least $20,000,000three Business Days prior to the Closing Date, all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing at least ten Business Days prior to the Closing Date by the Lenders.
Appears in 1 contract
Samples: Term Loan and Security Agreement (DXP Enterprises Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Each of the following conditions has been satisfiedis a condition precedent to Lender making the initial Loans hereunder:
(a) Notes Lender shall have been received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination of any interest in and to any assets and properties of Borrower duly authorized, executed and delivered, including, but not limited to, UCC termination statements for all UCC financing statements and Lender shall have satisfied itself that it has valid, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended as security for the Obligations, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including, without limitation, records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Borrowers Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender's latest field examination and delivered no change or event shall have occurred which would impair the ability of Borrower or any Obligor to each perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and of such other financial information, projections, budgets, business plans, cash flows as Lender shall reasonably request from time to time, including, but not limited to, current agings of receivables, current perpetual inventory records and/or rollforwards of Accounts and Inventory through the date of closing, together with supporting documentation, including documentation with respect to Inventory in-transit, goods in bonded warehouses or at other third-party locations, that requests issuance will enable Lender to accurately identify and verify the Inventory at or before the date hereof in a manner satisfactory to Lender, the results of which shall be satisfactory to Lender;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, agreements regarding customer rebates and customer discounts, agreements regarding slotting fees, agreements with major customers of Borrower, acknowledgments by mortgagees of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral;
(f) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(g) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Purchase Agreement, the Financing Agreements, the security interests and liens of Lender with respect to the Collateral and such other matters as Lender may request;
(h) Aggregate Excess Availability as determined by Lender as of the date hereof, shall be not less than Three Million Dollars ($3,000,000) after giving effect to the initial Loans made or to be made hereunder, the initial Loans (as defined under the DEY Loan Agreement) and the payment of all fees and expenses payable xxon the consummation of the initial transactions contemplated by this Agreement and the DEY Loan Agreement;
(i) Lender shall have received, in foxx and substance satisfactory to Lender and its counsel, the assignment of all of Borrower's rights in registered patents, trademarks, service marks and copyrights, as Collateral hereunder, on Lender's standard forms of Collateral Assignments;
(j) Lender shall have received, in form and substance satisfactory to Lender, an executed copy of a Note. Each Blocked Account agreement, pursuant to Section 6.3(a) hereof, among Lender, Borrower and Imperial Bank;
(k) Lender shall have received the DEY Guaranty and the UCS Guaranty, each in form and substance satisfxxxory to Lender;
(l) the other Loan Document Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesLender, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.Lender;
(em) Agent Lender shall have received a certificate of a duly authorized officer of each Obligorreceived, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.Lender, evidence that (i) the Purchase Agreements have been duly executed and delivered by and to the appropriate parties thereto, (ii) the transactions contemplated under the terms of the Purchase Agreements have been consummated prior to or contemporaneously with the execution of this Agreement and (iii) provisions have been incorporated into the Purchase Agreements which provide that any sums refunded or otherwise returned by Seller to Borrower or any Affiliate, whether from an escrow agent or otherwise, shall be wired directly to Lender;
(gn) Agent Lender shall have received received, copies of all Slotting Contracts and performed a review thereof, the charter documents results of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent which shall be satisfactory to Lender;
(o) Lender shall have received good standing certificates for each Obligorreceived, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent Lender, the Subordination Agreement executed by Seller and any other holders of a security interest in Borrower's assets shall have completed its businessterminated such security interests or have executed intercreditor and subordination agreements for the benefit of Lender, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).Lender;
(kp) Borrowers Lender shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories theretoreceived, and be in form and substance satisfactory to each Lender, a consolidated and consolidating pro-forma balance sheet of Borrower reflecting the initial transactions contemplated hereunder, including, but not limited to, (i) the consummation of the acquisition of the Purchased Stock by DAC from Seller and the other transactions contemplated by the Purchase Agreements and (ii) the Loans provided by Lender to Borrower on the date hereof and the use of the proceeds of the initial Loans as provided herein, accompanied by a certificate, dated of even date herewith, of the chief financial officer of Borrower, stating that such pro-forma balance sheet represents the reasonable, good faith opinion of such officer as to the subject matter thereof as of the date of such certificate;
(q) Lender shall have received, in form and substance satisfactory to Lender, evidence that Borrower and DEY have collectively received net cash proceeds from cash equity caxxxal contributions or loans (provided that such debt is subordinated to the interests of Lender in their sole discretion.a manner satisfactory to Lender) to Borrower and/or DEY of not less than Seven Million Dollars ($7,000,000), exclusive ox xny contributions from RDA Financing, and such proceeds have been applied to part of the cash portion of the purchase price of the Purchased Stock payable pursuant to the Purchase Agreements;
(mr) Agent Lender shall have received, in form and substance satisfactory to Lender, the agreement of Seller consenting to the collateral assignment by Borrower or any Obligor to Lender of all of Borrower's and such Obligor's rights and remedies and claims for damages and other relief under the Purchase Agreements and granting Lender such other rights as Lender may require, duly authorized, executed and delivered by Seller;
(s) the period for review of the transactions contemplated by the Purchase Agreements shall have expired without the taking of any actions adverse to such transactions by the United States Department of Justice and each representation and warranty contained in Section 8.13(b) hereof shall be true and correct;
(t) Lender shall have received a listing copy of the Borrowers’ Account DebtorsLease for the facility located at 674 Via de la Valle in Solana Beach, including the name and address of each such Account Debtor.California between UCS as Lessex xxx Xxxxxxxxx Xxxxxxxxxx, LLC as Lessor;
(nu) Agent Lender shall have received, the DEY Loan Agreement, in form and substance satisfactory to Lender;
(v) each condition precedent contained in the DEY Loan Agreement shall have been fulfilled to Lender's satisfactiox;
(w) Lender shall have received a Borrowing Base Certificate prepared an opinion letter from Houlihan Lokey Howard & Zukin with respect to Borrower's solvency anx xxxx xtxxx xxxxxxx as Xxxxxr may request, in form and substance satisfactory to Lender in its sole discretion;
(x) Lender shall have received from Borrower copies of the Closing Date. Upon giving effect all financial statements, balance sheets, cash flow projections or other such information of Borrower or its Affiliates provided to Houlihan Lokey Howard & Zukin for purposes of or in connection with xxxx xxxnxxx xxxxxxxx wixx x letter from Borrower's Chief Financial Officer, in form and substance satisfactory to Lender, representing and warranting as to the initial funding truth and accuracy of Loans and issuance of Letters of Creditall information contained therein;
(y) each IPD Affiliate, except for UCS, shall have agreed to merge into Borrower and the payment executed merger agreement(s) therefor delivered to Lender; and
(z) Lender shall have received, in form and substance satisfactory to Lender, a certificate as to the solvency of Borrower executed by Borrowers Borrower's Chief Financial Officer; and
(aa) Lender shall have received copies of all fees and expenses incurred licensing agreements, along with any related documents or agreements, pursuant to which Borrower or any of its Affiliates licenses software for use in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000conducting its business.
Appears in 1 contract
Samples: Loan and Security Agreement (Source Interlink Companies Inc)
Conditions Precedent to Initial Loans. In addition The obligation of the Lender to make the Loan(s) constituting the initial borrowing is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, condition precedent that the Lender must have received on or otherwise extend credit to Borrowers hereunder, until before the date (“Closing Date”of such Loan(s) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesfollowing, in form and substance satisfactory to itthe Lender and its counsel, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to or that the initial Loans and transactions hereunder, Lender shall otherwise be satisfied that the following conditions have been met: (ia) such Borrower is Solventthis Agreement duly executed by the Borrower; (iib) no Default or Event of Default existsthe Revolving Credit Promissory Note duly executed by the Borrower; (iiic) the representations and warranties set forth in Section 9 are true and correctAuthorization Letter duly executed by the Borrower; and (ivd) a favorable opinion of counsel for the Borrower, dated the Closing Date, as to such Borrower has complied with all agreements and conditions to be satisfied by it under matters as the Loan Documents.
Lender may reasonably request; (e) Agent shall have received a certificate of the Secretary or Assistant Secretary of the Borrower, dated the Closing Date, attesting to all company action taken by the Borrower, including resolutions of its governing board authorizing the execution, delivery and performance of the Facility Documents to which it is a duly authorized officer party and each other document to be delivered pursuant to this Agreement and certifying true copies of each Obligorthe articles of incorporation, by-laws and other organizational documents of the Borrower; (f) a certificate of the Secretary or Assistant Secretary of the Borrower, dated the Closing Date, certifying (i) that attached copies of such Obligor’s Organic Documents are the names and true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery signatures of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to officers of the title, name and signature of each Person Borrower authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until Facility Documents to which it is otherwise notified a party and the other documents to be delivered by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
Borrower under this Agreement; (g) Agent shall have received copies evidence of insurance as required by the charter documents Facility Documents; (h) a certificate of each Obligor, certified by good standing for the Borrower from the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for in which the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form Borrower is qualified to do business; and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in payment by the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior Borrower to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all expenses and fees and expenses (including reasonable attorney’s fees) incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.by the Lender;
Appears in 1 contract
Samples: Credit Agreement
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Each of the following conditions has been satisfiedis a condition precedent to Lender making the initial Loans hereunder:
(a) Notes Lender shall have been received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Leader may request to evidence and effectuate the termination by any existing lenders other than Permitted Indebtedness to Borrower of their respective financing arrangements with Borrower 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 Borrower and each Obligor, duly authorized, executed by Borrowers and delivered by it or each of them, including, but not limited to, UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower or any Obligor, as debtor;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of the Commitment and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a review of the Records and such other information with respect to the Collateral as Lender may require;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem reasonably 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;
(f) 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 that can be perfected by a UCC filing with Borrower’s state of incorporation (other than Permitted Liens);
(g) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation or organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(i) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower and Guarantors with respect to the Financing Agreements and such other matters as Lender may request;
(j) Lender shall have received, in form and substance satisfactory to Lender, a guarantee of the Obligations from each Guarantor;
(k) Lender that requests issuance shall have received in form and substance satisfactory to Lender, a Stock Pledge Agreement in form and substance satisfactory to Lender from Borrower as to the shares of Value Pawn Holdings, Inc., a Note. Each Tennessee corporation;
(l) Lender shall have received in form and substance satisfactory to Lender a pro forma opening balance sheet and solvency certificate of Borrower;
(m) the other Loan Document Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesLender, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsLender.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Value Financial Services, Inc.)
Conditions Precedent to Initial Loans. In addition At the time of ------------------------------------- the making of the initial Loans hereunder on the Effective Date, all obligations of Borrower hereunder incurred prior to the conditions set forth initial Loans (including, without limitation, Borrower's obligations to reimburse fees and expenses payable to the Administrative Agent and the Agent as previously agreed with Borrower), shall have been paid in Section 6.2full, Lenders and the Agent shall not be required have received the following, in form and substance reasonably satisfactory in all respects to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedAgent:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been the duly executed and delivered to Agent by each counterparts of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.this Agreement;
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateralduly completed Revolving Credit Notes evidencing the Revolving Loan Commitments, as well as UCC the duly executed Term Notes evidencing the Term Loan Commitments and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.duly executed Money Market Notes;
(c) Agent shall have received the duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.Guaranty Agreement;
(d) certificates of the Secretaries or Assistant Secretaries of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing the execution, delivery and performance of the Credit Documents to which each Credit Party is a party;
(e) certificates of the Secretaries or an Assistant Secretaries of the Credit Parties certifying (i) the name, title and true signature of each officer of the Credit Parties executing the Credit Documents to which each Credit Party is a party, and (ii) the bylaws of such entities;
(f) certified copies of the certificate or articles of incorporation of the Credit Parties certified by the Secretaries of State and by the Secretaries or Assistant Secretaries of the Credit Parties, together with certificates of good standing or existence, as may be avail able from the Secretaries of State of the jurisdiction of incorporation or organization of the Credit Parties and each other jurisdiction where the Credit Parties' ownership of property or the conduct of their respective businesses require it to be qualified, except where a failure to be so qualified would not have a Materially Adverse Effect;
(g) certificate of Borrower in substantially the form of Exhibit I attached --------- hereto and appropriately completed;
(h) acknowledgments from Prentice Hall Corporation as to its appointment as agent for service of process for the Credit Parties;
(i) the favorable opinion of (a) Xxxxxx X. Xxxx, Esquire, general counsel to the Credit Parties as to certain corporate matters, and (b) Powell, Goldstein, Xxxxxx & Xxxxxx, counsel to the Credit Parties as to certain other matters, in the form of Exhibits J-1 and J-2, respectively, in each case ------------ --- addressed to the Agent and each of the Lenders;
(j) certified copies of the Sharing Agreements;
(k) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contrac tual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have received expired;
(l) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(m) certificates, reports and other information as the Agent may reasonably request from the Borrower in order to satisfy the Lenders that the Transaction has been consummated in accordance with the Proxy Statement and all Requirements of Law, including without limitation, a copy of the Certificate of Merger filed with the State of Delaware and the State of Georgia evidencing that Xxxxxxxx and its subsidiary, Ruby Tuesday, Inc. have been merged into the Borrower;
(n) Either (i) a certified copy of a favorable ruling from the Internal Revenue Service that the Distribution qualifies as a tax-free spin-off under the provisions of Sections 355 and 368(a)(1)(D) of the Internal Revenue Code, or (ii) an opinion to such effect from Powell, Goldstein, Xxxxxx & Xxxxxx together with a reliance letter addressed to the Agent and the Lenders stating that the Agent and the Lenders may rely upon such opinion;
(o) all Restructured Indebtedness identified on Schedule 8.01 hereof, ------------- together with all interest, prepayment premiums and other amounts due and payable with respect thereto shall have been paid in full (including with the proceeds of the Term Loans and the initial Borrowing pursuant to the Revolving Loan Commitments) and all commitments thereunder shall have been terminated as evidenced by written notice from Xxxxxxxx to such Lenders;
(p) a certified copy of the projections described in Section 6.14(c);
(q) certificates, reports and other information as the Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies; and
(r) evidence assuring the Agent and the Lenders that all corporate proceedings and all other legal matters in connection with the authorization, legality, validity and en forceability of the Credit Documents and the Transaction are in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsLenders.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders Lender shall not be required to fund any requested Loan, issue any Letter of Credit, Credit or otherwise extend credit to Borrowers hereunder, until the date (“"Closing Date”") that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent Lender by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent Lender shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent Lender that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent Lender shall have received the Related Real Estate Documents for all Real Estate subject to a Mortgage.
(d) Lender shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to AgentLender.
(de) Agent Lender shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunderhereunder as well as all of the transactions contemplated under the Marquis SPA Documents and the Mezzanine Debt Documents, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent Lender shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s 's Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent Lender may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent Lender shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPXxxxx Xxxxxxxxx, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Lender, each in form and substance satisfactory to AgentLender.
(gh) Agent Lender shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization. Agent Lender shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization and each jurisdiction where such Obligor’s 's conduct of business or ownership of Property necessitates qualification.
(hi) Agent Lender shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ij) Agent Lender shall have completed its business, financial and legal due diligence of Obligors, including (i) a roll-forward of its previous field examination, (ii) Inventory, Equipment and Real Estate appraisals, and (iii) a review of all material pending or threatened litigation or administrative proceedings and all environmental aspects of Borrowers' business, in each case with results satisfactory to AgentLender. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30January 3, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)2015.
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders Lender on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateJune 29, 2015. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,0003,000,000.
(m) Borrowers shall have obtained consents and approvals from all Governmental Authorities and other third parties that are required by the Marquis SPA.
(n) All conditions precedent to the effectiveness of the Marquis SPA shall have been satisfied (and not waived unless Lender shall have approved such waiver in its discretion) and the Marquis Acquisition shall have been consummated on terms and subject to legal documentation acceptable to Lender in its discretion.
(o) Lender shall have received copies of the fully-executed Marquis SPA and the Marquis SPA Documents, certified by an officer of Borrower Agent to be true, correct and complete.
(p) All conditions precedent to the effectiveness of the Equity Contribution Documents shall have been satisfied (and not waived unless Lender shall have approved such waiver in its discretion) and the Equity Contribution shall have been consummated on terms and subject to legal documentation acceptable to Lender in its discretion.
(q) The transactions contemplated by the Mezzanine Debt Documents shall have been consummated on terms and subject to legal documentation acceptable to Lender in its discretion.
(r) Agent shall have received copies of the fully-executed Equity Contribution Documents and the Mezzanine Debt Documents, certified by an officer of Borrower Agent to be true, correct and complete, each of which shall be in form and substance acceptable to Lender.
(s) Lender shall have received (i) interim financial statements for Borrowers as of May 30, 2015, (ii) projections of Borrower's consolidated balance sheets, results of operations, cash flow and Availability for Fiscal Year 2015, month by month and (iii) all other financial and business information reasonably requested by Lender.
(t) Lender shall be satisfied with all aspects of Obligors' corporate, capital and ownership structure and indebtedness.
(u) Lender shall have completed all due diligence required for compliance with the PATRIOT Act and other Applicable Law and all background checks.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition At the time of the making of the initial Loans hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to the conditions set forth initial Loans (including, without limitation, Borrower's obligations to reimburse the reasonable fees and expenses of counsel to the Agent and any fees and expenses payable to the Agent as previously agreed with Borrower), shall have been paid in Section 6.2full, Lenders and the Agent shall not be required have received the following, in form and substance reasonably satisfactory in all respects to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedAgent:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been the duly executed and delivered to Agent by each counterparts of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.this Agreement;
(b) the duly completed Revolving Credit Notes evidencing the Revolving Credit Commitments, the duly completed Swing Note evidencing the Swing Line Commitment and the duly executed Competitive Bid Notes evidencing the Competitive Bid Facility;
(c) receipt by the Agent of evidence that all governmental, shareholder and material third-party consents (including Hart-Xxxxx-Xxxxxx xxxarance) and approvals required in connection with the acquisition of the Acquired Company and the other transactions contemplated hereby and expiration of all applicable waiting periods without any action being taken by any authority that could reasonably be likely to restrain, prevent or impose any material adverse conditions on the acquisition of the Acquired Company or such other transactions or that could reasonably be likely to seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the judgment of the Agent could reasonably be likely to have such effect;
(d) certificates of the Secretary or Assistant Secretary of the Borrower attaching and certifying copies of the resolutions of the board of directors of the Borrower, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) certificates of the Secretary or an Assistant Secretary of the Borrower certifying (i) the name, title and true signature of each officer of the Borrower executing the Credit Documents, and (ii) the bylaws of the Borrower;
(f) certified copies of the certificate or articles of incorporation of the Borrower and each of its Subsidiaries certified by the Secretary of State and by the Secretary or Assistant Secretary of the Borrower or such Subsidiaries, as appropriate, together -50- 60 with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of the Borrower and each of its Subsidiaries, and each other jurisdiction where the ownership of property or the conduct of its business require the Borrower or its Subsidiaries to be qualified, except where a failure to be so qualified would not have a Materially Adverse Effect;
(g) certificate of Borrower in substantially the form of Exhibit I attached hereto and appropriately completed;
(h) there shall not have been any Material modification, amendment, supplement or waiver to the Purchase Agreement without the prior written consent of the Agent, including, but not limited to, any Material modification, amendment, supplement or waiver relating to the amount or type of consideration to be paid in connection with the acquisition of the Acquired Company and the contents of all disclosure schedules and exhibits, the acquisition of the Acquired Company shall have been consummated substantially in accordance with the terms of the Purchase Agreement; and Agent shall have received acknowledgments a copy of the final Purchase Agreement, together with all exhibits and schedules thereto, certified by an Executive Officer of the Borrower;
(i) the favorable opinion of (a) Robexx XxXxxxxx, Xxquire, corporate counsel to the Borrower and its Subsidiaries as to certain corporate matters, and (b) King & Spalding, counsel to the Borrower and its Subsidiaries as to certain matters, in the form of Exhibits J-1 and J-2, respectively, in each case addressed to the Agent and each of the Lenders;
(j) copies of all documents and instruments, including all consents, authorizations and filings, required under the articles or certificate of incorporation and bylaws or other organizational or governing documents, under any Requirement of Law or by any material Contractual Obligation of the Borrower and its Subsidiaries, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings or recordations necessary to perfect its Liens and orders shall be in the Collateral, as well as UCC full force and Lien searches effect and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.all applicable waiting periods shall have expired; and
(ck) any other document, opinion or certificate reasonably requested by the Agent shall have received duly executed agreements establishing each Dominion Account and related lockboxthe Lenders assuring the Agent and the Lenders that all corporate proceedings and all other legal matters in connection with the authorization, in form legality, validity and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, enforceability of the Credit Documents are in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsLenders.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Credit Agreement (Rock Tenn Co)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“"Closing Date”") that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) [Intentionally omitted].
(d) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(de) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower 1 certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such each Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such each Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s 's Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPCoie, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization and each jurisdiction where such Obligor’s 's conduct of business or ownership of Property necessitates qualification.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ij) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082014.
(jk) Agent shall have receivedreceived interim financials for Borrowers since the last audited financials in December 31, each in form and substance satisfactory to Agent2014 through August 31, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)2015.
(kl) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared Report as of the Closing DateSeptember 30, 2015. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Each of the following conditions has been satisfiedis a condition precedent to Lender making the initial Loans hereunder:
(a) Notes Lender shall have been executed received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority, and only security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) All requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Borrowers Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) No material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender's latest field examination and delivered no change or event shall have occurred which would impair the ability of Borrower or any Obligor to each perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender that requests issuance to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of a Note. Each the Records and such other Loan Document information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower, the results of which shall be satisfactory to Lender, not more than three (3) business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including acknowledgments by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral;
(f) Lender shall have received evidence of insurance and lender loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as lender loss payee;
(g) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may reasonably request;
(h) The Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesLender, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, Lender;
(i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent Lender shall have received a certificate of a duly authorized officer of each Obligortitle insurance reports and insurance issued thereunder, certifying (i) that attached copies of such Obligor’s Organic Documents are true commitments, financing statements, surveys and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery flood plain certificates of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.Real Property;
(fj) Agent Lender shall have received a written opinion the Deeds of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPTrust, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.Lender, duly executed by Borrower;
(gk) Agent Lender shall have received copies collateral assignments of life insurance policies (including assignment of cash values) owned by Borrower on the charter documents life of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.James C. Kostelni;
(hl) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent Lender shall have received, each in form and substance xx xxxx xxx xxxstance satisfactory to AgentLender, interim financial statements not more than 30 days prior the Subordination Agreement(s) between Lender and any holder of Subordinated Debt, as acknowledged and agreed to by Borrower, providing for subordination of such indebtedness to the Closing Date for: prior, full and final payment of all Obligations and further providing for such parties' relative rights and priorities with respect to the assets and properties of Borrower (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Groupincluding, without limitation, the Eldorado GroupCollateral) and related matters, the SCP Groupduly authorized, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each such holder of the signatories thereto, Subordinated Debt and be in form and substance satisfactory to each Lender in their sole discretion.Borrower; and
(m) Agent shall have received a listing of the Borrowers’ Account DebtorsThe Excess Availability, including the name as determined by Lender on and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon date hereof, shall be not less than Five Hundred Thousand Dollars ($500,000) after giving effect to any Revolving Loans made on the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000date hereof.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens, provided that such acknowledgments and documentation necessary to perfect its Liens on any Belgian Inventory under Belgian law, in form and substance satisfactory to Agent, may be delivered to Agent in accordance with the Post-Closing Side Letter.
(c) Agent shall have received the Related Real Estate Documents for 0000 Xxxxxxx Xxxx, Aiken, South Carolina and 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, which shall all be in form and substance satisfactory to Agent, provided that all or some of such documents may be delivered to Agent in accordance with the Post-Closing Side Letter.
(d) Agent shall have received duly executed agreements Deposit Account Control Agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, reasonably satisfactory to Agent, provided that such agreements may be delivered to Agent in accordance with the Post-Closing Side Letter.
(de) Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 and Section 14.13 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received written opinions of Ropes & Xxxx LLP, in form and substance reasonably satisfactory to Agent.
(h) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPBelgian counsel with respect to Belgian Inventory, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance reasonably satisfactory to Agent, provided that such opinion may be delivered to Agent in accordance with the Post-Closing Side Letter.
(gi) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates as of a recent date, for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and, to the extent applicable with respect to each of the Borrowers, foreign qualification certificates issued by the Secretaries of State of Pennsylvania and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationSouth Carolina.
(hj) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ik) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082011.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(kl) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateJune 8, 2012. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practicesherewith, Excess Availability shall be at least $20,000,00015,000,000.
(n) The Reaffirmation of Intercreditor Agreement and the DB Acknowledgement Agreement shall have been executed and delivered to Agent.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) [Reserved.]
(d) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(de) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of the Borrower Agent certifying (on behalf of each Borrower certifying of the Borrowers) that, after giving effect to the initial Loans and transactions hereunder, (i) such each Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such each Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxxx Xxxx Xxxxxxx LLP, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each Documents and in form and substance satisfactory acceptable to Agent.
(ij) Agent shall have received copies of financial projections of the Borrowers, showing the Borrowers’ ability to comply with the financial covenants set forth in this Agreement, and interim financial statements of the Borrowers on consolidated and consolidating bases as of June 30, 2011, in each case in form and substance acceptable to Agent.
(k) Agent shall have received an appraisal of Borrowers’ Equipment and Inventory and Agent shall have completed its business, financial and legal due diligence of Obligors, including collateral reviews, audits, appraisals, assessments, a roll-forward of its previous field examination, in each case with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September June 30, 20082011.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(kl) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateAugust 31, 2011. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00010,000,000.
(n) Agent shall have received duly executed third party and/or governmental consents and approvals as may be appropriate or necessary for the Borrowers’ execution and performance of the Loan Documents and the transactions contemplated thereunder.
(o) There shall not have been any material disruption of or material adverse change in the conditions in the financial, banking or capital markets since June 30, 2011.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, Loan or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received (i) acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral (including, without limitation, (A) UCC financing statements to be filed with the applicable Secretary of State and (B) recording of any IP Assignments to be filed with the United States Patent and Trademark Office), (ii) originals of each stock certificate evidencing Collateral, as well as together with a transfer power executed in blank, (iii) copies of each promissory note constituting Collateral (if any), together with an executed allonge, and (iv) UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing Deposit Account Control Agreements with respect to all of each Dominion Account and related lockboxBorrower’s Deposit Accounts (other than Excluded Accounts), in each case, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions Transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents charter, certificate or articles of incorporation, bylaws or similar agreement or instrument governing the formation of such Obligor are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPXxxxx Day, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationObligor maintains offices.
(h) Agent shall have received copies of policies or certificates of insurance and related endorsements for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to AgentDocuments (including the requirements of Section 8.6.2).
(i) Agent shall have completed and be satisfied with its business, financial and legal due diligence of Obligors, including but not limited to, (i) a field examination of the books, records and operations of Borrowers and Subsidiaries and a roll-forward of its previous such field examination; (ii) receipt of audited financial statements of Borrowers and Subsidiaries for the last three Fiscal Years; (iii) review of material contracts of Borrowers and Subsidiaries; (iv) receipt of a pro forma balance sheet of Borrowers and Subsidiaries, with results satisfactory dated as of the Closing Date, which balance sheet shall reflect no material changes from the most recent pro forma balance sheet of Borrowers and Subsidiaries previously delivered to Agent; (v) interim financial statements for Borrowers and Subsidiaries as of a date not more than 30 days prior to the Closing Date; and (vi) monthly financial projections of Borrowers and Subsidiaries for the next 12 calendar months and quarterly projections of Borrowers and Subsidiaries for the next 3 Fiscal Years, including balance sheets, income statements and cash flow statements. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082018.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nk) Agent shall have received a Borrowing Base Certificate prepared Report as of the Closing DateFebruary 29, 2020. Upon giving effect to the initial funding of Loans and issuance of Letters of CreditLoans, and the payment by Borrowers of all fees and expenses incurred in connection herewith herewith, as well as any payables stretched beyond their customary payment practices, (i) Availability shall be at least $20,000,0002,000,000 and (ii) the sum of (A) Availability plus (B) unrestricted cash of the Borrowers on the Closing Date shall be at least $8,000,000.
(l) Agent shall have received evidence that the loans and other obligations under the Existing Lender Documentation and under any other agreements with respect to any Debt not permitted pursuant to Section 10.2.1 hereof have been repaid or will be repaid with the initial Loans made hereunder on the Closing Date and the commitments thereunder have been terminated, and the Agent shall have received a customary payoff letter in form and substance reasonably satisfactory to it relating to the termination (or assignment to the Agent) of all mortgages, financing statements, and liens associated therewith.
(m) Agent and Lenders, shall have each received (and shall be satisfied with) at least ten (10) Business Days prior to the Closing Date, (i) an executed Certificate of Beneficial Ownership with respect to each Obligor (other than AutoWeb); and (ii) all other documentation and other information about the Obligors required under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been requested by the Agent and the Lenders at least ten (10) Business Days prior to the Closing Date.
(n) Agent shall have received a certificate of the Borrower Agent's chief financial officer, in form, substance and detail satisfactory to the Agent, demonstrating that the EBITDA of the Borrowers and Subsidiaries, on a consolidated basis (as adjusted in a manner satisfactory to the Agent), for the twelve month period ended February 29, 2020, is greater than $(3,600,000).
(o) No action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that, in Agent’s judgment, (i) would reasonably be expected to have a Material Adverse Effect or (ii) could reasonably be expected to materially and adversely affect the transactions contemplated by this Agreement and the other Loan Documents.
(p) Agent shall be satisfied with the ownership, organizational, legal, tax management, capitalization, and capital structure of Borrowers and Subsidiaries, and shall be satisfied that Borrowers and Subsidiaries will be Solvent, after giving effect to the Transactions.
(q) The respective credit committees of each Lender shall have approved the provision of the credit facilities under this Agreement.
(r) Agent shall have received evidence that Borrowers have received all governmental and third party consents and approvals as may be appropriate in connection with the transactions contemplated by this Agreement and the other Loan Documents.
(s) Agent shall have received a duly executed copy of a Lien Waiver for Borrower’s location at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, in form and substance satisfactory to Agent.
(t) Agent shall have received written instructions from Borrower Agent directing the application of proceeds of the initial Loans made pursuant to this Agreement (which in the aggregate shall be no less than the Minimum Balance).
(u) Agent shall be satisfied that each Borrower is in good standing with its vendors with satisfactory accounts payable relative to the vendor terms and agreements and industry standards.
(v) All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions shall be satisfactory in form and substance to Agent and its counsel.
Appears in 1 contract
Samples: Loan, Security and Guarantee Agreement (AutoWeb, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedsatisfied or waived by Agent in its discretion:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations reasonably necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received the Related Real Estate Documents for all Real Estate subject to a Mortgage; provided that no surveys shall be required with respect to the properties located in Virginia that are subject to Mortgages on the Closing Date.
(d) Agent shall have received duly executed agreements establishing each Agent’s control over, and springing dominion with respect to, the Dominion Accounts (and related lockboxes, if any) of Borrowers with US Bank and Xxxxx Fargo Bank, N.A., and shall have received an assignment of deposit accounts acknowledged by UBS with respect to the Dominion Account (and related lockbox, if any) of Swiss Borrower at UBS, each in form and substance, and with financial institutions, substance reasonably satisfactory to Agent.
(de) Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such US Borrower is Solvent, Swiss Borrower is Solvent after taking into account its rights of contribution and the Obligors taken as a whole are Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx & Xxxxx LLP, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance reasonably satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organizationorganization (if applicable). Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization (if applicable) and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ij) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral Material Adverse Effect shall have occurred since September 30August 31, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)2007.
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of December 31, 2007 and a roll-forward of gross balances comprising the Borrowing Base in form and substance satisfactory to Agent prepared as of the end of the most recently ended-week prior to the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practicesherewith, Availability shall be at least $20,000,0008,000,000.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders there shall not be required no obligation or requirement to fund any requested the initial request for a Loan, issue initial issuance of any Letter of Credit, or otherwise extend initial credit to Borrowers any Credit Party hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedsatisfied or waived:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor Credit Party shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of received, in proper form for filing or recording, all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Government Receivables Deposit Account, Private Deposit Account, Concentration Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesa certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is the Credit Parties, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower each Credit Party has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each ObligorCredit Party, certifying (i) that attached copies of such ObligorCredit Party’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified modified, revoked or revoked, and constitute all resolutions adopted with respect to this credit facilitycontradicted by any other resolution; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor Credit Party in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxx Xxxxxxx LLPXxxxxx & Xxxxx, PLLC, as well as local counsel to Borrowers and Parent in Utah and Michiganthe Credit Parties, each in form and substance reasonably satisfactory to the Agent.
(g) Agent shall have received copies of the charter documents of each ObligorCredit Party, certified by the Secretary of State or other appropriate official of such ObligorCredit Party’s jurisdiction of organization. Agent shall have received good standing certificates for each ObligorCredit Party, issued by the Secretary of State or other appropriate official of such ObligorCredit Party’s jurisdiction of organization and each jurisdiction where such ObligorCredit Party’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersCredit Parties, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of ObligorsCredit Parties, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects event or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082013 that has had or could reasonably be expected to have a Material Adverse Effect.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nk) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateMay 31, 2014. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00050,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Capella Healthcare, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders Lender shall not be required to fund any requested Loan, issue any Letter of Credit, Credit or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent Lender by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent Lender shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent Lender that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent Lender shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to AgentLender.
(d) Agent Lender shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent Lender shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the titlename, name title and signature of each Person authorized to sign the Loan Documents. Agent Lender may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent Lender shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPXxx Xxxxxx s.c., as well as any local counsel to Borrowers and Parent in Utah and Michiganor Lender, each in form and substance satisfactory to AgentLender.
(g) Agent Lender shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent Lender shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such 44 Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent Lender shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents.
(i) Each Borrower shall have provided, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to AgentLender, all documentation and other information as Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Lender in relation to such Borrower.
(ij) Agent Lender shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to AgentLender. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30March 31, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)2020.
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders Lender on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.45
Appears in 1 contract
Samples: Loan and Security Agreement (Orion Energy Systems, Inc.)
Conditions Precedent to Initial Loans. In addition The obligation of ------------------------------------- the Bank to make its initial Loan is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedprecedent that:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent The Bank shall have received acknowledgments on or before the day of all filings the initial Borrowing the following, each dated prior to or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that of such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesday, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, Bank:
(i) such The Note(s) issued by the Borrower is Solvent; to the order of the Bank;
(ii) no Default Copies of the Articles, Certificate of Incorporation, partnership agreement or Event other organizational document of Default exists; the Borrower, certified as of a recent date by the Secretary of State of its state of formation or incorporation;
(iii) Copies of the representations and warranties set forth in Section 9 are true and correct; and Bylaws, if any, of the Borrower, certified by the Secretary or an Assistant Secretary of the Borrower;
(iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy Copies of resolutions authorizing execution and delivery of the Loan Documents is true and completeBoard of Directors or other authorizing documents of the Borrower, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.the Bank, approving the Loan Documents and the Borrowings hereunder;
(gv) Agent shall have received copies of the charter documents of each Obligor, certified An incumbency certificate executed by the Secretary or an Assistant Secretary of State the Borrower or equivalent document, certifying the names and signatures of the officers of the Borrower or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by Persons authorized to sign the Secretary of State or Loan Documents and the other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.documents to be delivered hereunder;
(hvi) Agent shall have received Executed copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.;
(ivii) Agent Opinion from Borrower's counsel substantially in the form of Exhibit B hereto;
(b) The Bank shall have completed its businessdue diligence review of the Borrower, financial and the scope and results thereof shall be satisfactory to Bank in its discretion;
(c) All information previously furnished by Borrower to Bank shall be true and correct in all material respects;
(d) All fees required to be paid at closing shall have been paid; and
(e) All corporate and legal due diligence of Obligorsproceedings and all instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent Bank and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Groupcounsel, and the Tapco Group).
(k) Borrowers shall have paid all fees Bank and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent such counsel shall have received a listing of any and all further information and documents which the Borrowers’ Account Debtors, including the name and address of each Bank or such Account Debtor.
(n) Agent shall counsel may reasonably have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred requested in connection herewith as well as any payables stretched beyond their customary payment practicestherewith, Availability shall such documents where appropriate to be at least $20,000,000certified by proper corporate or governmental authorities.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes Agent shall have been received, in form and substance satisfactory to Agent and Lenders, the following
(i) Notes, duly executed by Borrowers and delivered to each the extent any Lender that requests has requested issuance of a Note. Each ;
(ii) photocopies of all Pledged Collateral delivered to the Term Loan Agent.
(iii) Mortgages duly executed, acknowledged and delivered by the Company in form suitable for filing or recording in all filing or recording offices necessary in order to create a valid Lien on the property described therein in favor of Agent for the benefit of the Secured Parties, together with (for each property subject to a Mortgage):
(A) evidence that all filing, documentary, stamp, intangible and recording taxes and fees have been paid;
(B) a duly executed Environmental Agreement; and
(C) copies of title policies, surveys, environmental and engineering, soils and other reports and material documents and agreements delivered to the Term Loan Agent under the Term Loan Facility in connection any mortgage thereunder of the property subject to the Mortgage;
(iv) Lien Waivers, Deposit Account Control Agreements and each other Loan Document shall have been required hereunder and set forth on the closing list delivered to the Company by Agent, duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.;
(bv) The Intercreditor Agreement, duly executed and delivered by the Term Loan Agent shall have received and the Company;
(vi) acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.;
(cvii) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, certificates from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.;
(eviii) Agent shall have received a A certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.;
(fix) Agent shall have received a favorable written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPXxxxx Day, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory relating to Agent.the Loan Documents;
(gx) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received , and good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.;
(hxi) Agent shall have received copies of (A) a report of Xxxxx-XxXxxx, LLC as to insurance policies and coverages maintained, or to be maintained after giving effect to the Transactions, by Holdings and the Subsidiaries and (B) policies or certificates of insurance for the insurance policies carried by Borrowers, together with standard lenders’ loss payable endorsement, all in compliance with the Loan Documents;
(xii) a Borrowing Base Certificate;
(xiii) the Supporting Letter of Credit;
(xiv) an operating forecast setting forth the Borrowers’ working capital accounts, together including a detailed calculation of the Borrowing Base and available cash, prepared on a daily pro forma basis after giving effect to the Valero Acquisition, for the two week period following the Closing Date;
(xv) an environmental assessment report from RMT, Inc., which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with endorsements naming Agent as lender loss payee any facilities of Holdings, the Company or additional insuredany of their respective Subsidiaries, as appropriateand Lenders shall be satisfied with the nature and amount of any such matters and with Holdings’ and the Company’s plans with respect thereto;
(xvi) UCC-3 terminations and all other release and termination documents terminating or releasing all Liens on Collateral other than Permitted Liens;
(xvii) copies of the Stock Purchase Agreement, each the Merger Agreement, the Offtake Agreement and the Term Loan Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lenders, certified as true and correct by a Senior Officer of the Borrower Agent;
(xviii) certified copies of a certificate of merger from the Secretary of State of the State of Delaware or other confirmation satisfactory to the Lenders of the consummation of the Merger substantially contemporaneously with the making of the initial Loans hereunder; and
(xix) the IDB Consents.
(b) No changes or developments shall have occurred, and no new or additional information shall have been received or discovered by Agent or the Lenders regarding Holdings, the Company or the Acquired Company and their respective Subsidiaries or the Transactions after November 30, 2007 that (i) Agent shall either individually or in the aggregate could reasonably be expected to have completed its business, financial a Material Adverse Effect or (ii) materially and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in adversely affects (A) the business, assets, properties, liabilities, operations, Propertiesconditions or prospects of the Acquired Company, prospects (B) the Transactions or condition (financial or otherwiseC) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008Collateral.
(jc) Agent the Valero Acquisition shall have receivedbeen consummated substantially contemporaneously with the making of the initial Loans hereunder, each in form and substance satisfactory on terms acceptable to Agent, interim financial statements not more than 30 days prior to the Closing Date for: including (i) Parent and its Subsidiaries on a consolidated basis; and satisfactory legal documentation, (ii) Parent Agent’s satisfaction with Holding’s and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI GroupCompany’s corporate, capital and ownership structures after giving effect to the Eldorado Group, the SCP GroupValero Acquisition, and (iii) receipt by the Tapco Group)Company of all government, shareholder and third party consents (including Xxxx-Xxxxx-Xxxxxx clearance) deemed necessary or appropriate by Agent.
(kd) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the Transactions, including initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practicesherewith, Availability shall be at least $20,000,000.
(e) The Company shall have received (i) cash proceed of not less than $270,000,000 from the funding of the Term Loan Facility after deduction of any original issue discount and payment of costs and expenses and before funding the Crack Spread Hedge Agreement Cash Collateral and (ii) cash proceeds of not less than $100,000,000 from the Holdings Contribution, which Holdings shall have transferred to the Company as a contribution to the common equity of the Company.
(f) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(g) There shall not have occurred since June 11, 2008 a material disruption of or material adverse change in conditions in the financial, banking or capital markets.
Appears in 1 contract
Samples: Loan and Security Agreement (Alon USA Energy, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor Borrower shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iiiii) the representations and warranties set forth in Section 9 are true and correct; and (iviii) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each ObligorBorrower, certifying (i) that attached copies of such ObligorBorrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor Borrower in writing.
(f) Agent shall have received a written opinion of Pillsbury Schmiedeskamp, Robertson, Neu & Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each LLP in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each ObligorBorrower, certified by the Secretary of State or other appropriate official of each such Obligor’s jurisdiction of organizationBorrower. Agent shall have received good standing certificates for each ObligorBorrower, issued by the Secretary of State or other appropriate official of such ObligorBorrower’s jurisdiction of organization and each jurisdiction where such ObligorBorrower’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrower (including without limitation the policy with respect to the Inventory associated with Xxxxxxxx Steel), together with endorsements naming Agent as loss payee on insurance covering the Collateral and additional insured, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each Documents and in form and substance satisfactory to AgentAgent in its discretion.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor Borrower or in the quality, quantity or value of any Collateral shall have occurred since September 30February 29, 20082012.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nk) Agent shall have received a Borrowing Base Certificate prepared as of September 30, 2012 in connection with the Closing Date. Upon giving effect most recent field exam.
(l) Borrowers shall have provided satisfactory evidence that no action, suit, investigation, litigation or proceeding shall be pending or threatened in any court or before any arbitrator or governmental instrumentality that in Agent’s discretion (i) could reasonably be expected to result in a Material Adverse Effect; or (ii) could reasonably be expected to materially and adversely affect this Agreement or the transactions contemplated hereby.
(m) Agent shall have received a fully executed consent hereto from each Exiting Lender in form reasonably satisfactory to Agent.
(n) Agent shall have received a fully executed termination letter with respect to each deposit account control agreement entered into in connection with the Original Credit Agreement from each Exiting Lender.
(o) A duly executed reaffirmation of the existing subordination letter with respect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000Foreign Affiliate Loans.
Appears in 1 contract
Samples: Credit and Security Agreement (Titan International Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Agent, Issuing Bank, and Lenders shall not be required to fund any requested Loan, issue or arrange for issuance of any Letter of Credit, or otherwise extend credit or grant any other accommodation to Borrowers hereunderor for the benefit of Borrowers, until the date (“Closing Date”) that each of the following conditions has been satisfied, or waived by Agent in writing in Agent’s sole discretion:
(a) Notes shall have been executed Each Loan Document, including without limitation that certain Second Omnibus Amendment and Reaffirmation of Existing Ancillary Documents by Borrowers and delivered to each Lender that requests issuance of a Note. Each other among Obligors, Agent, and Lenders concerning the 2013 Loan Document Documents, shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received (a) an amendment to each Mortgage and a date down endorsement to each title insurance policy, each in form and substance satisfactory to Agent and (b) with respect to all Real Estate subject to a Mortgage (i) a life-of-loan flood hazard determination and, if the Real Estate is located in a special flood hazard area, an acknowledged notice to borrower and flood insurance by an insurer acceptable to Agent, and (ii) to the extent requested by Agent or not previously provided to Agent, an environmental assessment, prepared by environmental engineers acceptable to Agent, and such other reports, certificates, studies or data as Agent may reasonably require, all in form and substance satisfactory to Agent.
(d) to the extent not previously delivered to Agent, Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(de) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such each Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 and in all other documents previously or concurrently delivered by one or more of the Borrowers to Agent are true and correctcorrect in all material respects (except to the extent that any such representation or warranty is qualified by its terms with respect to materiality, in which case such certification shall provide that such representation or warranty is true and correct in all respects); and (iv) such each Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents; (v) each Borrower has obtained all governmental and third party consents and approvals as may be appropriate or required in connection with the Loan Documents; and (vi) to the best of Borrowers’ knowledge, the Dealer Finance Agreements are sufficient in all material respects for the financing needs of the Borrowers’ dealers.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPXxxxxxxxxx & Xxxxx, as well as local counsel to Borrowers and Parent in Utah and MichiganP.A., each in form and substance reasonably satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hi) to the extent not previously delivered to Agent, Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrowers (including certificates naming Agent as lender’s loss payee or additional insured, as applicable), all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent No material adverse change, in the opinion of Agent, in the business, assets, properties, liabilities, operations, condition or prospects of Obligors, taken as a whole, shall have receivedoccurred since March 31, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group2016, and no change, occurrence or development shall have occurred or become known to Agent since March 31, 2016 that would reasonably be expected to have a Material Adverse Effect on the Tapco Group)Borrowers and their subsidiaries, taken as a whole.
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared Report as of October 31, 2016.
(m) There shall have been, since November 7, 2016, an absence of any material disruption or any material adverse change in the Closing Date. Upon giving effect to conditions of the initial funding of Loans financial, banking and issuance of Letters of Creditcredit markets that Agent, and the payment by Borrowers of all fees and expenses incurred in its sole discretion, deems material in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000with the syndication of the Obligations hereunder.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Each of the following conditions has been satisfiedis a condition precedent to Lender making the initial Loans hereunder:
(a) Notes Lender shall have received, in form and substance satisfactory to Lender, evidence that (i) the Merger Agreements have been duly executed and delivered by and to the appropriate parties thereto, (ii) the Merger has been approved by the unanimous written consent of the shareholders of Rostone and OMPC, and (iii) the transactions contemplated under the terms of the Merger Agreements have been consummated prior to or contemporaneously with the execution of this Agreement;
(b) Lender shall have received, in form and substance satisfactory to Lender, evidence that the Certificates of Merger with respect to the Merger have been filed with the Secretary of State of the State of Delaware and the Department of State of State of New York and that the Merger is valid and effective in accordance with the terms and provisions of the Merger Agreements and the applicable corporation statutes of the State of Delaware and the State of New York;
(c) Lender shall have received, in form and substance satisfactory to Lender, an unaudited consolidating pro forma balance sheet of Borrowers reflecting the initial transactions contemplated hereunder, including, but not limited to, (i) the consummation of the Merger and the transactions contemplated in connection therewith in accordance with the Merger Agreements and (ii) the Loans provided by Lender to Borrowers on the Effective Date and the use of the proceeds of the initial Loans as provided herein, accompanied by a certificate, dated of even date herewith, of the chief financial officer of each Borrower, stating that such unaudited consolidating pro forma balance sheet represents the reasonable, good faith opinion of each such officer as to the subject matter thereof as of the date of such certificate;
(d) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by each of Society National Bank, successor by merger to AmeriTrust Company National Association, and Key Capital Corporation, successor by merger to Society Capital Corporation, formerly known as Ameritrust Corporation, of each of their financing arrangements with Rostone, and the termination and release by each of any interest in and to any assets and properties of Rostone and each Obligor, duly authorized, executed and delivered by it, including, but not limited to, (i) UCC-3 Termination Statements for all UCC Financing Statements previously filed by it or its predecessors, as secured party, and Rostone or any Obligor, as debtor, and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by Rostone or any Obligor in favor of such existing lender, in form acceptable for recording in the appropriate governmental office;
(e) Lender shall have received, in form and substance satisfactory to Lender, all releases and such other documents as Lender may request to evidence and effectuate the release by ORIX Credit Alliance, Inc. of its security interests in and to any of the Collateral, other than specific leased equipment under existing equipment leases, in each case duly authorized, executed and delivered by it, including, but not limited to, UCC-3 Partial Releases for all UCC Financing Statements previously filed by it or its predecessors, as secured party, and OMPC or any Obligor, as debtor;
(f) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(g) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including, without limitation, records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(h) no material adverse change shall have occurred in the assets, business or prospects of any of Rostone, OMPC, OMPC-NC or Borrowers since the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrowers or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(i) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrowers, the results of which shall be satisfactory to Lender, not more than three (3) business days prior to the date hereof;
(j) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral;
(k) Lender shall have received, in form and substance satisfactory to Lender, the Environmental Indemnity Agreement, duly executed and delivered by Xxxxxxx Xxxxxxx; provided, however, that notwithstanding the delivery of such Environmental Indemnity Agreement and any disclosure contained in any environmental assessment reports and/or updates thereof and/or other information provided to Lender in any Exhibit or Schedule hereto or otherwise with respect to Borrowers' facilities subject to the Mortgages, whether delivered to Lender on, prior to or after the date hereof, nothing contained herein shall be deemed to waive, affect or impair Lender's right to rely on (i) such reports or updates thereof or information or any additional environmental reports and/or updates thereof with respect to Borrowers' facilities subject to the Mortgages, whether delivered to Lender on, prior to or after the date hereof and (ii) the Environmental Indemnity Agreement in accordance with its terms;
(l) Lender shall have received, in form and substance satisfactory to Lender, a valid and effective title insurance policy issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Lender for protection of its interests;
(m) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(n) Lender shall have received, in form and substance satisfactory to Lender, subordination agreements between Lender and each of Xxxxxxx Xxxxxxx, Reunion, Xxxxx Xxx, CGII, Chatwins and the Apex Principals, as acknowledged by Borrowers, each duly authorized and/or executed and delivered by each of Xxxxxxx Xxxxxxx, Xxxxx Xxx, CGII, Chatwins and the Apex Principals and Borrowers, as the case may be;
(o) Lender shall have received, in form and substance satisfactory to Lender, (i) the Limited Guarantee, duly executed and delivered by Xxxxxxx Xxxxxxx and (ii) a Guarantee by each Borrower guaranteeing the Obligations of the other Borrower, each duly executed and delivered by each Borrower;
(p) Lender shall have received, in form and substance satisfactory to Lender, the opinion letter of counsel(s) to Borrowers and Xxxxxxx Xxxxxxx with respect to the Merger Agreements, the effectiveness of the Merger as of the date hereof, the Financing Agreements and the security interests and liens of Lender with respect to the Collateral and such other matters as Lender may request;
(q) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to OMPC and Rostone with respect to the Merger Agreements, upon which Lender may expressly rely;
(r) Reunion, as the parent of OMPC, shall have received and delivered to each Lender, in form and substance satisfactory to Lender, a copy of the fairness opinion, from Prudential Securities, Inc. or another nationally recognized investment advisory company with respect to the fairness of the Merger to Reunion;
(s) Lender that requests issuance shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents to evidence and effectuate the termination by Apex Capital Partners, L.P. of a Note. Each its Consulting Agreement and the assignment by Rostone to, and the assumption by CGII of Stanwich Partners' Consulting Agreement, and the consent by Stanwich Partners thereto, and as to both Consulting Agreements, the satisfaction or release of all existing and future obligations of Rostone and ORC thereunder;
(t) Borrowers shall have Excess Availability as determined by Lender, as of the Effective Date, in an amount not less than $500,000 after giving effect to the initial Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the initial transactions hereunder; and
(u) the other Loan Document Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesLender, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsLender.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Reunion Industries Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to the Borrowers hereunder, until the date (“Closing Second Restatement Date”) that each of the following conditions has been satisfied:satisfied (and with respect to deliveries of Loan Documents, each such delivery shall be fully-executed (where applicable) and in form and substance satisfactory to Agent and its counsel) (subject to Section 10.1.13):
(a) Notes shall have been executed by Borrowers each Borrower and delivered to each Applicable Lender that requests issuance of a Note. Each other Loan Document set forth on the List of Closing Documents shall have been duly executed and delivered to Agent (where applicable) by each of the signatories theretothereto and delivered to Agent, and each Obligor Loan Party shall be in compliance with all terms thereof. Each other instrument, document or agreement set forth on the List of Closing Documents shall have been executed (where applicable) and delivered to Agent.
(b) Agent shall have received acknowledgments satisfactory evidence that Agent shall have a valid and perfected security interest in the Collateral (including delivery to Agent of all instruments needed for filings or recordations necessary to perfect its Liens in the Collateral).
(c) Agent shall have received UCC, as well as UCC PPSA, and Lien searches and other evidence satisfactory to Agent that such its Liens are the only Liens upon the ABL Collateral, except Permitted Liens.
(cd) All filing and recording fees and taxes shall have been duly paid or arrangements satisfactory to Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agentbeen made for the payment thereof.
(de) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Responsible Officer of each Borrower Loan Party certifying that, after giving effect to the Transactions and the initial Loans and transactions hereunder, (i) such the Canadian Borrower is and its consolidated Restricted Subsidiaries, taken as a whole, and the U.S. Borrower and its consolidated Restricted Subsidiaries, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 with respect to such Loan Party are true and correctcorrect in all material respects (or, with respect to representations and warranties qualified by materiality, in all respects) (except for representations and warranties that expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or, with respect to representations and warranties qualified by materiality, in all respects) as of such earlier date); and (iv) such Borrower Loan Party has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of or other person authorized to represent each ObligorLoan Party, certifying (i) that attached copies of such ObligorLoan Party’s Organic Organization Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents to which such Loan Party is a party is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; (iii) all governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document have been obtained and are in effect; and (iiiiv) to the title, name and signature of each Person authorized to sign the Loan DocumentsDocuments to which such Loan Party is a party. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor Loan Party in writing.
(fg) Agent shall have received a written opinion satisfactory opinions of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPcounsel to the Loan Parties, as well as in each case, customary for transactions of this type (which shall cover, among other things, authority, legality, validity, binding effect and enforceability of the Loan Documents) and of appropriate local counsel to Borrowers (including Ontario and Parent in Utah and Michigan, each in form and substance satisfactory to AgentNetherlands counsel).
(gh) Agent shall have received copies of the charter documents of each ObligorLoan Party, certified by the Secretary of State or other appropriate official of such ObligorLoan Party’s jurisdiction of organization. .
(i) Agent shall have received good standing certificates for each ObligorLoan Party, issued by the Secretary of State or other appropriate official of such ObligorLoan Party’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct with respect to the European Borrower, an original extract from the register of business or ownership the chamber of Property necessitates qualificationcommerce.
(hj) Since December 31, 2013 no change, occurrence or development shall have occurred or become known to the Lead Arrangers that could reasonably be expected to have a Material Adverse Effect.
(k) Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by the Loan Parties and their Restricted Subsidiaries; and Agent shall have received copies of policies or short form (if available) (i) certificates of insurance for the insurance policies carried by Borrowerswith respect to each Loan Parties’ property and liability insurance, all in compliance with the Loan Documents, together with and (ii) endorsements naming Agent as lender an additional insured or lender’s loss payee or additional insuredmortgagee, as appropriatethe case may be and as its interests may appear, under all casualty and business interruption insurance policies to be maintained with respect to the properties of the Loan Parties forming part of the Collateral, in each case, in form and substance reasonably satisfactory to Agent.
(il) Agent shall have completed its businessNo action, financial and legal due diligence of Obligorssuit, including a roll-forward of its previous field examinationinvestigation, with results satisfactory to Agent. No material adverse change litigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that in the business, operations, Properties, prospects Lenders’ judgment (a) could reasonably be expected to have a Material Adverse Effect or condition (financial b) could reasonably be expected to materially and adversely affect the credit facilities or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretiontransactions contemplated hereby.
(m) All accrued fees and expenses of the Secured Parties (including the fees and expenses of counsel (including any local counsel) for such Secured Parties) due from the Loan Parties on or prior to the Second Restatement Date, including all fees payable to Agent under the Agent Fee Letter, shall have been paid in full in cash.
(n) All conditions precedent to the closing of the Fixed Asset Facility shall have been satisfied in accordance with the Permitted Secured Debt Documents to be executed on the Second Restatement Date. Agent shall have received a listing certificate of a Responsible Officer of Loan Party Agent certifying copies of the Borrowers’ Account Debtorsmaterial Permitted Secured Debt Documents to be executed on the Second Restatement Date attached thereto to be true, including the name correct and address of each such Account Debtorcomplete copies thereof.
(no) Agent The Notes Refinancing shall have been consummated substantially concurrently with the Second Restatement Date.
(p) Each Lender shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans all Patriot Act, anti-money laundering and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred “know your client” documentation required in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000with this Agreement from the Loan Parties.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Each of the following conditions has been satisfiedis a condition precedent to Lender making the initial Loans hereunder:
(a) Notes Lender shall have been executed received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the existing lender or lenders to Borrowers of their respective financing arrangements with Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or any Obligor, as debtor and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by each Borrower or any Obligor in favor of such existing lender or lenders, in form acceptable for recording in the appropriate government office;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that requests issuance Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(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 Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(d) no material adverse change shall have occurred in the assets, business or prospects of any Borrower since the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a Note. Each party or of Lender to enforce the Obligations or realize upon the Collateral;
(e) Lender shall have completed a field review of the Records and such other Loan Document information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrowers, the results of which shall be satisfactory to Lender, not more than three (3) business days prior to the date hereof;
(f) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including acknowledgments by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral;
(g) Lender shall have received, in form and substance satisfactory to Lender, a letter from Xxxxxx Xxxx confirming that Lender may rely upon Xxxx'x appraisals of the Inventory and Equipment and confirming the amount of the forced liquidation value of the Equipment as determined by Xxxx;
(h) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as an additional insured and a loss payee, as the case may be;
(i) Lender shall have received, in substantially the form attached hereto as Exhibit C, such opinion letters of counsel to Borrowers with respect to the Financing Agreements and such other matters as Lender may request; and
(j) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesLender, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsLender.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Alpha Technologies Group Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, Loan or otherwise extend credit to Borrowers hereunderany Borrower, nor shall Issuing Bank or Administrative Agent have any obligation to issue any Letter of Credit for the account of any Borrower, until the date (the “Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a NoteNote at least three (3) Business Days prior to the Closing Date. Each other Loan Document of this Agreement, each Security Document, each Intercreditor Agreement and any Other Agreement required by Administrative Agent shall have been duly executed by parties thereto and shall be in full force and effect on the Closing Date, and the executed counterparts (originals or facsimiles) of such agreements or documents have been delivered to Administrative Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Administrative Agent shall have received (i)(A) acknowledgments of all those filings or recordations necessary to perfect its Liens in on the CollateralCollateral or (B) documents and instruments (including UCC financing statements) required by Applicable Law or reasonably requested by Administrative Agent to be filed, as well as registered or recorded to create the Liens intended to be crated by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, the Security Documents; (ii) UCC and Lien searches and other evidence satisfactory to Administrative Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens; and (iii) a Perfection Certificate with respect to Obligors dated the Closing Date and duly executed by a Senior Officer of Holdings and each Obligor, respectively.
(c) Administrative Agent shall have received the Related Real Estate Documents for all Mortgaged Properties.
(d) Borrowers shall have established Dominion Accounts and related lockboxes with financial institutions satisfactory to Administrative Agent, and, other than the delivery requirements of Section 8.2.4, Administrative Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, reasonably satisfactory to Administrative Agent.
(de) Administrative Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer the chief financial officer of each Borrower Holdings, certifying that, after giving effect to the initial Loans and transactions hereunderTransactions to occur on the Closing Date, (i) such Borrower is Holdings and its subsidiaries, on a consolidated basis, are Solvent; (ii) no Default or Event of Default exists; and (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such each Borrower has complied with all agreements and conditions to be satisfied by it on or by the Closing Date under the Loan Documents.
(ef) Administrative Agent shall have received a certificate of a duly authorized officer the Secretary or Assistant Secretary of each ObligorObligor dated the Closing Date, certifying (iA) that attached copies thereto is a true and complete copy of the such Obligor’s Organic Documents are as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached complete copy of resolutions duly adopted by the Board of Directors of such Obligor authorizing execution the execution, delivery and delivery performance of the Loan Documents to which such Obligor is true and completea party and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, were duly adopted, (C) that the Organic Documents of such Obligor have not been amended, modified or revokedamended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (h), and constitute all resolutions adopted with respect (D) as to this credit facilitythe incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Obligor; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iiiiv) to the title, name and signature of each Person authorized to sign the Loan Documents. such other documents as Administrative Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agentreasonably request.
(g) Administrative Agent shall have received, on behalf of itself and Lenders, a favorable written opinion of (i) Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for Holdings and Borrowers, substantially to the effect set forth in Exhibit G, and (ii) each local counsel listed on Schedule 6.1(g), substantially to the effect set forth in Exhibit H, in each case (A) dated the Closing Date and (B) addressed to Administrative Agent and Lenders.
(h) Administrative Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Administrative Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hi) Administrative Agent shall have received copies of policies or certificates a certificate of insurance for the insurance policies carried required by Borrowers, all in compliance with Sections 8.6.2 and 10.1.7 and the Loan applicable provisions of the Security Documents, together with endorsements naming each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name Administrative Agent as lender loss payee or additional insured, as appropriate, each in form and substance reasonably satisfactory to Administrative Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Administrative Agent and the Lead Arrangers shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on received from Borrowers a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each Borrowing Base Certificate as of the HRI Grouplast day of the Fiscal Month ending on or about May 31, the Eldorado Group, the SCP Group, and the Tapco Group).2010;
(k) Borrowers shall have paid all fees Transaction Expenses due and expenses payable on or prior to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement Xxxxx/Spectrum Acquisition shall have been duly executed and delivered to Agent by each been, or substantially simultaneously with the initial funding of the signatories Loan on the Closing Date shall be, consummated in accordance with Applicable Law and on the terms described in the Merger Agreement, without giving effect to any amendments thereto or waivers or consents that, in any such case, are materially adverse to the Lenders without the consent of Lead Arrangers (such consent not to be unreasonably withheld or delayed). Administrative Agent shall have received copies of the Merger Agreement (including all schedules, exhibits, amendments, supplements and modifications thereto) and all certificates, opinions and be in form other documents delivered thereunder, certified by a Financial Officer as being complete and substance satisfactory to each Lender in their sole discretioncorrect.
(m) Spectrum shall have received gross cash proceeds of not less than $750,000,000 upon the execution of the Senior Term Loan Documents. The terms and conditions of the Senior Term Loan Documents and the provisions of the Senior Term Loan Documents, to the extent not consistent with the terms of the Commitment Letter dated as of February 9, 2010, shall be satisfactory to Administrative Agent and Lead Arrangers, and Administrative Agent shall have received a listing copies of the Borrowers’ Account DebtorsSenior Term Loan Documents, including certified by a Financial Officer as being complete and correct. Spectrum shall have received gross cash proceeds of not less than $750,000,000 from the name issuance of the Senior Secured Notes. The terms and address conditions of each such Account Debtorthe Senior Secured Notes and the provisions of the Senior Secured Note Documents, to the extent not consistent with the terms of the Commitment Letter dated as of February 9, 2010, shall be satisfactory to Administrative Agent and Lead Arrangers, and Administrative Agent shall have received copies of the Senior Secured Note Documents, certified by a Financial Officer as being complete and correct.
(n) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Facilities shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received a Borrowing Base Certificate prepared as of the Closing Datereasonably satisfactory evidence thereof. Upon Immediately after giving effect to the initial funding of Loans Transactions and issuance of Letters of Creditthe other transactions contemplated hereby, Obligors and their Subsidiaries shall have outstanding no Debt or preferred stock other than (i) Debt outstanding under this Agreement, (ii) the Senior Secured Notes, (iii) Debt outstanding under the Term Loan Agreement, (iv) the PIK Notes and (v) other Debt set forth in Schedule 10.2.1.
(o) Lenders shall have received the financial statements and opinion referred to in, and prepared in accordance with, Section 9.1.7, none of which shall demonstrate a material adverse change in the payment by financial condition of Borrowers of all fees from (and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall not otherwise be materially inconsistent with) the financial statements or forecasts previously provided to Lenders.
(p) Reserved.
(q) Administrative Agent and the Lead Arrangers shall be satisfied that the ratio of (i) the Consolidated Total Debt (excluding (A) the principal amount of the PIK Notes outstanding on the Closing Date and (B) the lesser of (1) $50,000,000 and (2) the aggregate amount of unrestricted cash and Cash Equivalents that are included in the consolidated balance sheet of Borrowers and Subsidiaries as of such date) to (ii) Consolidated EBITDA for the period of four consecutive Fiscal Quarters most recently ended prior to the Closing Date (prepared in form and substance reasonably satisfactory to the Administrative Agent and the Lead Arrangers, and with such further adjustments as set forth in a schedule previously agreed to by Administrative Agent, Lead Arrangers and Borrowers, in each case to give pro forma effect to the Transactions as if they had occurred at least $20,000,000the beginning of such four-fiscal quarter period), shall be no more than 3.8 to 1.0.
(r) Reserved.
(s) All requisite Governmental Authorities and third parties (including any applicable debt holders) shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall be no litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.
Appears in 1 contract
Samples: Loan and Security Agreement (Spectrum Brands, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders Lender shall not be required to fund any requested Loan, issue any Letter of Credit, Loan or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent Lender by each of the signatories thereto, and each Obligor Borrowers shall be in compliance with all terms thereof.
(b) Agent Lender shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent Lender that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent Lender shall have received duly executed agreements establishing each the Dominion Account and related lockbox, lockbox in form and substance, and with financial institutions, substance satisfactory to AgentLender.
(d) Agent Lender shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer senior officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solventsolvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent Lender shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true Borrowers’ organizational documents and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of all resolutions authorizing the execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all any other resolutions adopted with respect to this credit facility; and (iii) to the titleAgreement, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writingas well as any necessary third party or governmental consents and/or Lien Waivers.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent Lender shall have received copies of the charter documents of each ObligorBorrowers, certified by the Secretary of State or other appropriate official of such Obligor’s Borrowers’ jurisdiction of organization. Agent Lender shall have received good standing certificates for each ObligorBorrowers, issued by the Secretary of State or other appropriate official of such Obligor’s Borrowers’ jurisdiction of organization and each jurisdiction where such Obligor’s Borrowers’ conduct of business or ownership of Property necessitates qualification.
(hg) Agent Lender shall have received copies of policies or certificates of insurance and insurance endorsements for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ih) Agent Lender shall have completed its business, financial and legal due diligence of ObligorsBorrowers, including completion of its pre-closing appraisals and a roll-forward of its previous field examination, in each instance, with results satisfactory to AgentLender. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor Borrower or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082016.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders Lender on the Closing Date.
(lj) The Intercreditor Agreement Lender shall have been duly executed and delivered received (i) Borrowers’ financial projections demonstrating Borrowers’ ability to Agent by each comply with Section 10.3 for the term of this Agreement, (ii) Borrowers’ unaudited interim financial statements (which shall be prepared as of a date not more than 30 days prior to the signatories theretoClosing Date), and be (iii) a Borrowing Base Report prepared as of March 31, 2017, in each instance, in form and substance satisfactory to each Lender in their sole discretionall respects.
(mk) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, Credit and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability Availability, plus Borrowers’ cash on hand, shall be at least $20,000,0003,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Xplore Technologies Corp)
Conditions Precedent to Initial Loans. In addition Lender's obligation to make the initial Loans to Borrowers under this Agreement shall be subject to the conditions set forth in Section 6.2, Lenders shall not be required fulfillment to fund any requested Loan, issue any Letter the satisfaction of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that Lender of each of the following conditions has been satisfiedconditions:
(a) Notes Lender shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesreceived, in form and substance satisfactory to itLender, from all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by all existing lenders (other than lenders with respect to Permitted Liens and Permitted Other Indebtedness) of their respective financing arrangements with Credit Parties and the termination and release of any interest in and to any assets of Credit Parties, duly authorized, executed and delivered by each of them, including, but not limited to UCC termination statements for all UCC financing statements (other than for Permitted Liens) previously filed by such lenders or any of them or their predecessors, as secured parties, and Credit Parties, as debtors.
(b) All requisite corporate, partnership, limited liability company and other actions and proceedings in connection with this Agreement and the other Loan Documents shall be satisfactory in form and substance to Lender, and Lender shall have received (i) a knowledgeable Senior Officer Certificate of the Secretary, Clerk, Managing Member or other similar officer of each Borrower certifying thatCredit Party in substantially the form attached hereto as Exhibit F, as to the Governing Documents, incumbency and authorizing resolutions of such Credit Party, and (ii) all other information and copies of all documents which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority;
(c) No Material Adverse Effect shall have occurred since September 30, 2003;
(d) Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit (including, without limitation, Capitated Contract Rights), review of Credit Parties' Books and Records, and verification of Credit Parties' representations and warranties to Lender, (ii) a complete field examination, and (iii) an inspection of each of the locations selected by Lender at which Credit Parties conduct business, the results of each of which shall be satisfactory to Lender;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments, and other agreements from third parties, which Lender deems necessary or desirable in order to permit, protect and perfect its Liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Loan Documents (it being understood and agreed that Landlord Waivers from the landlords of Credit Parties shall not be deemed to be a condition to closing);
(f) Loan Availability plus unrestricted cash on hand (other than from the proceeds of Loans) as of the Closing Date, as determined by Lender, shall not be less than the amount shown on Exhibit A after giving effect to the initial Loans made or to be made hereunder and transactions hereunderno Revolving Loans shall be requested or outstanding as of the Closing Date;
(g) Lender shall have received, in form and substance satisfactory to Lender, Control Agreements by and among Lender, Credit Parties and each bank where any Credit Party has a Lockbox and/or Deposit Account, in each case, duly authorized, executed and delivered by such bank and such applicable Credit Parties (or Lender shall be the applicable 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 will have a valid perfected security interest in all of the Collateral immediately upon the funding of the initial Loans, subject only to Permitted Liens;
(i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent Lender shall have received a certificate evidence of a duly authorized officer of each Obligorinsurance and loss payee endorsements required hereunder and under the other Loan Documents, certifying (i) that attached copies of such Obligor’s Organic Documents are true in form and completesubstance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee and additional insured, as the case may be. Without limiting the foregoing, Lender shall have received evidence of proof of professional liability insurance, directors and officers insurance and workers' compensation insurance in full force amounts and effecton terms reasonably satisfactory to Lender;
(j) Lender shall have received completed reference checks with respect to the senior management of Credit Parties, without amendment except as shown; the results of which are satisfactory to Lender in its sole discretion;
(iik) that an attached copy Credit Parties shall have paid to Lender the Facility Origination Fee and all other Fees and Expenses owing on or before the Closing Date in accordance with Exhibit A;
(l) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of resolutions authorizing execution and delivery of counsel to Credit Parties with respect to the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent other matters as Lender may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.request;
(fm) Agent Borrower shall have received a written opinion executed and delivered to Lender such Lockbox Agreements and Obligor Notices as Lender shall deem necessary or appropriate in order to carry out the terms of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPthis Agreement;
(n) All required parties shall have executed and delivered this Agreement and the other Loan Documents (including, without limitation, all those listed on the Closing Checklist attached hereto as well as local counsel to Borrowers and Parent in Utah and MichiganExhibit D), each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, Lender together with endorsements naming Agent such other documents, certificates, agreements and/or instruments as lender loss payee or additional insuredLender may reasonably request and delivered to Lender, as appropriate, each in form and substance satisfactory to Agent.Lender;
(io) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing copies of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared all Management Agreements in effect as of the Closing Date. Upon giving ;
(p) Lender shall have received copies of all Capitated Contracts in effect as of the Closing Date;
(q) Lender shall have received certificates from the applicable Governmental Authorities confirming that all amounts due to state or local taxing authorities by Credit Parties, including without limitation amounts owed to the initial funding California Franchise Tax Board, have been paid in full (other than the amounts subject to tax liens identified on Schedule 9.7, all of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability which shall be at least $20,000,000discharged and removed from the public lien records in accordance with paragraph 2 of Schedule 9.17); and
(r) Lender shall have received such other approvals, information or documents as it may reasonably request.
Appears in 1 contract
Samples: Loan and Security Agreement (Prospect Medical Holdings Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedsatisfied or waived:
(a) Notes Agent shall have been received, in form and substance satisfactory to Agent and Lenders, the following
(i) Revolver Notes, duly executed by Borrowers and delivered to each the extent any Lender that requests has requested issuance of a Revolver Note. Each ;
(ii) for each Mortgaged Property, copies of title policies, surveys, environmental and engineering, soils and other Loan Document shall have been reports and material documents and agreements delivered to the Note Collateral Agent under the Indenture on or prior to the Closing Date in connection with any mortgage thereof;
(iii) the Intercreditor Agreement, duly executed and delivered by the Note Collateral Agent;
(iv) the Intercreditor Acknowledgement, duly executed and delivered by the Company;
(v) each other Loan Document required hereunder and set forth on the closing list delivered to Agent the Company by Agent, duly executed and delivered by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.;
(bvi) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Agent’s Liens are the only Liens upon the Collateral, except Permitted Liens.;
(cvii) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, certificates from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (iA) such Borrower is Solvent; (iiB) no Default or Event of Default exists; (iiiC) the representations and warranties set forth in Section 9 are true and correct; and (ivD) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.;
(eviii) Agent shall have received a A certificate of a duly authorized officer of each Obligor, certifying (iA) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (iiB) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iiiC) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.;
(fix) Agent shall have received a favorable written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel Xxxxx Day relating to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.this Agreement;
(gx) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received , and good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.;
(hxi) Agent shall have received a Borrowing Base Certificate;
(xii) UCC-3 terminations and all other release and termination documents terminating or releasing all Liens on Collateral securing the Term Loan Facility; and
(xiii) copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Note Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each duly executed by the parties thereto and in form and substance satisfactory to the Lenders, certified as true and correct by a Senior Officer of the Borrower Agent.
(ib) Agent The Company shall have completed its business, financial and legal due diligence received cash proceeds of Obligors, including a roll-forward not less than $205,000,000 from the issuance of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) Notes after deduction of any Obligor or in the quality, quantity or value original issue discount and before payment of costs and expenses and funding any Collateral shall have occurred since September 30, 2008Crack Spread Hedging Cash Collateral.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(kc) Borrowers shall have paid all fees and expenses to be paid to incurred by Agent and Lenders on or prior to the Closing Date to the extent an invoice therefor is provided to the Company prior to the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Alon USA Energy, Inc.)
Conditions Precedent to Initial Loans. In addition The obligation of Lender to make the initial Loan requested to be made by it hereunder is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, satisfaction or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each waiver by Lender of the following conditions has been satisfiedprecedent:
(a) Notes Lender shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been received this Agreement, duly executed and delivered to Agent by each of Borrower and the signatories thereto, Security Agreement and each Obligor shall be in compliance with all terms thereofother Loan Documents.
(b) Agent Lender shall have received acknowledgments audited consolidated financial statements of all filings or recordations necessary Sole Member for the two most recent fiscal years ended prior to perfect its Liens in the Collateral, Closing Date and unaudited interim consolidated financial statements of Sole Member for each fiscal quarter ended after the date of the latest applicable audited financial statements delivered as well as UCC and Lien searches and other evidence satisfactory to Agent that which such Liens financial statements are the only Liens upon the Collateral, except Permitted Liensavailable.
(c) Agent There shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with occurred no Material Adverse Effect since the date of the last audited full year financial institutions, satisfactory to Agentstatement of the Sole Member.
(d) Agent Lender shall have received certificatesthe certificates representing the Collateral (if in certificated form) pledged to Lender pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of Borrower and, in form and substance satisfactory the case of uncertificated Collateral, Lender shall either have been registered by the issuer of such uncertificated Collateral as the registered owner, or the issuer of such uncertificated Collateral shall have agreed in writing to it, comply with all instructions from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect Lender with respect to the initial Loans and transactions hereunder, (i) such uncertificated Collateral without further consent from Borrower for so long as this Agreement is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documentseffect.
(e) Agent Lender shall have received a certificate of a duly authorized officer of satisfactory evidence that each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of document required by the Loan Documents is true or any requirement of law or reasonably requested by the Lender to be filed, registered or recorded in order to create in favor of the Lender a perfected first priority Lien on the Collateral described therein, prior and complete, and that such resolutions are superior in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted right to any other Person (other than with respect to Liens expressly permitted under this credit facility; and (iii) to the titleAgreement), name and signature of each Person authorized to sign the Loan Documents. Agent including UCC-1 financing statements in such jurisdictions as may conclusively rely on this certificate until it is otherwise notified be required by the applicable Obligor Security Agreement or by law or as may be requested by Lender, shall be in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPproper form for filing, as well as local counsel to Borrowers registration or recording and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered properly filed, registered or recorded (or provided to Agent by each of the signatories theretoLender to be properly filed, and be in form and substance satisfactory to each Lender in their sole discretionregistered or recorded, as applicable).
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Loan Agreement (Nl Industries Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, this Agreement and the Lenders shall not be required obligations to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until hereunder shall become effective on the date on which (such date, the “Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, except with respect to Liens that are not required under this Agreement and the other Loan Documents to be perfected, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to any Loan funded on the initial Loans date hereof and any other transactions hereunder, (including any other Debt incurred) on the date hereof: (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ed) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fe) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Akin Gump Xxxxxxx Xxxxx & Xxxx Xxxxxxx LLP, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent reasonably requested by Agent, each in form and substance satisfactory to Agent.
(gf) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationorganization.
(hg) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082020.
(jh) Agent No action, suit, investigation or proceeding pending or, to the knowledge of any Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)occurred.
(ki) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(lj) The Intercreditor Agreement Agent and the Lenders shall have been duly executed received, at least three (3) Business Days prior to the Closing Date, all documentation and delivered other information that they reasonably determine is required by regulatory authorities under “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ACT and Beneficial Ownership Regulation, to the extent reasonably requested at least ten (10) Business Days prior to the Closing Date. If any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Agent by each of the signatories thereto, and be Lenders in form and substance satisfactory relation to each Lender in their sole discretionsuch Borrower.
(mk) Agent shall have received a listing evidence of the Borrowers’ Account Debtorsrepayment of all Debt owing under, including and the name and address termination of all commitments in respect of, the Delayed Draw Term Loan Facility pursuant to documentation reasonably satisfactory to Agent. For purposes of determining compliance with the conditions specified in this Section 6.1, each such Account Debtor.
(n) Lender that has delivered a signature page to this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable to a Lender or Agent unless Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect notice from such Lender prior to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor Borrower shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iiiii) the representations and warranties set forth in Section 9 are true and correct; and (iviii) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each ObligorBorrower, certifying (i) that attached copies of such ObligorBorrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor Borrower in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPSchmiedeskamp, as well as local counsel to Borrowers and Parent in Utah and MichiganRobertson, each Neu & Mxxxxxxx LLP in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each ObligorBorrower, certified by the Secretary of State or other appropriate official of each such Obligor’s jurisdiction of organizationBorrower. Agent shall have received good standing certificates for each ObligorBorrower, issued by the Secretary of State or other appropriate official of such ObligorBorrower’s jurisdiction of organization and each jurisdiction where such ObligorBorrower’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrower (including without limitation the policy with respect to the Inventory associated with Hxxxxxxx Steel), together with endorsements naming Agent as loss payee on insurance covering the Collateral and additional insured, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each Documents and in form and substance satisfactory to AgentAgent in its discretion.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor Borrower or in the quality, quantity or value of any Collateral shall have occurred since September 30February 29, 20082012.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nk) Agent shall have received a Borrowing Base Certificate prepared as of September 30, 2012 in connection with the Closing Date. Upon giving effect most recent field exam.
(l) Borrowers shall have provided satisfactory evidence that no action, suit, investigation, litigation or proceeding shall be pending or threatened in any court or before any arbitrator or governmental instrumentality that in Agent’s discretion (i) could reasonably be expected to result in a Material Adverse Effect; or (ii) could reasonably be expected to materially and adversely affect this Agreement or the transactions contemplated hereby.
(m) Agent shall have received a fully executed consent hereto from each Exiting Lender in form reasonably satisfactory to Agent.
(n) Agent shall have received a fully executed termination letter with respect to each deposit account control agreement entered into in connection with the Original Credit Agreement from each Exiting Lender.
(o) A duly executed reaffirmation of the existing subordination letter with respect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000Foreign Affiliate Loans.
Appears in 1 contract
Samples: Credit and Security Agreement (Titan International Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers Borrower hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers Borrower and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor Obligated Party shall be in compliance with all terms thereof., including:
(i) a Guaranty executed by Value Services in the form of Exhibit F attached hereto;
(ii) a security agreement executed by Value Services in the form of Exhibit G attached hereto;
(iii) a pledge agreement executed by Borrower in the form of Exhibit H attached hereto;
(iv) a post closing agreement executed by Borrower in the form of Exhibit I attached hereto;
(v) a Trademark Security Agreement executed by Borrower in the form of Exhibit J attached hereto; and
(vi) a website security agreement and power of attorney executed by Borrower in the form of Exhibit k attached hereto;
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockboxAccount, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Obligated Party certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower Obligated Party is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower Obligated Party has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each ObligorObligated Party, certifying (i) that attached copies of such ObligorObligated Party’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor Obligated Party in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Sxxxxxxx Xxxxxx Xxxxxxx & Hxxxxxx LLP, as well as any local counsel to Borrowers and Parent in Utah and MichiganObligated Parties, each in form and substance satisfactory to AgentAgent and its counsel.
(g) Agent shall have received copies of the charter documents of each ObligorObligated Party, certified by the Secretary of State or other appropriate official of such ObligorObligated Party’s jurisdiction of organization. Agent shall have received good standing certificates for each ObligorObligated Party, issued by the Secretary of State or other appropriate official of such ObligorObligated Party’s jurisdiction of organization and each jurisdiction where such ObligorObligated Party’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligated Parties, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of ObligorsObligated Parties, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor Obligated Party or in the quality, quantity or value of any Collateral shall have occurred since September March 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers Obligated Parties shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nk) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateMay 25, 2008. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers Borrower of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Formula Availability shall be at least $20,000,0007,000,000.
(l) Agent shall have received the Disclosure Schedules in form and substance satisfactory to Agent in its discretion.
(m) Each of the other documents set forth on the “Closing Checklist” prepared by Agent’s counsel and made available to Obligated Parties has been duly-executed and delivered, and all other items set forth on such Closing Checklist have been verified or delivered, as applicable, in each case to the satisfaction of Agent and its counsel.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Each of the following conditions has been satisfiedis a condition precedent to Agent and Lenders making the initial Loans hereunder:
(a) Notes Agent shall have been 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 Secured Parties of their respective arrangements with Borrower 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 Borrower or Servicer, duly authorized, executed by Borrowers and delivered by it or each of them, including, but not limited to, UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower, as debtor, UCC financing statement amendments for all UCC financing statements filed by Borrower as secured party/buyer, Originator as debtor/seller and any of the Existing Secured Parties (or their predecessors) as assignee of Borrower to change the assignee and the written authorization in favor of Agent (or its designee) to file such UCC termination statements and such UCC financing statement amendments in each case in form and substance satisfactory to Agent and notices to the banks at which the Lock-Box Accounts and Concentration Account are maintained terminating the interest of the Existing Secured Parties therein as acknowledged and agreed to by such banks;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Agent may have requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of Borrower and Servicer certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower and Servicer as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower or Servicer since the date of Agent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of Borrower or Servicer to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) 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 Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts through the date of closing in a manner satisfactory to Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that requests issuance will enable Agent to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the date hereof;
(e) Agent shall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, consents from the Senior Credit Facility Agent and the lenders under the Senior Credit Facility Agreement and from the Subordinated Credit Facility Agent and the lenders under the Subordinated Credit Facility Agreement;
(f) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $5,000,000 after giving effect to the initial Loans made or to be made in connection with the initial transactions hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, Borrower, and each bank where there is a Lock-Box Account and the Concentration Account, in each case, duly authorized, executed and delivered by such bank and Borrower;
(h) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral;
(i) Agent shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation or organization of each Transaction Party and Originator and the jurisdiction of the chief executive office of each Transaction Party and Originator, which search results shall be in form and substance satisfactory to Agent;
(j) 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;
(k) Agent shall have received the Receivables Purchase Agreement and the WPS Finco Note in form and substance satisfactory to Agent, duly executex xx the parties thereto;
(l) Agent shall have received the Intercreditor Agreements, in form and substance satisfactory to Agent, duly authorized, executed and delivered by the parties thereto, Borrower and WestPoint;
(m) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrower with respect to the Transaction Documents and such other matters as Agent may request, including a favorable opinion of special counsel to the Transaction Parties and the Originator, as to (i) the existence of a Note. Each "true sale" of the Receivables from the Originator to Borrower under the Receivables Purchase Agreement and (ii) the inapplicability of the doctrine of substantive consolidation to Borrower and WestPoint in connection with any bankruptcy proceeding involving WestPoint;
(n) Agent shall have received, in form and substance satisfactory to Agent, written confirmation from WestPoint that the independent certified public accountants to WestPoint have represented to it that Borrower will be treated as a qualifying special purpose entity pursuant to FASB 140 in the audited financial statements of WestPoint and such other Loan Document related matters as Agent may reasonably request; and
(o) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories theretoAgent, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Westpoint Stevens Inc)
Conditions Precedent to Initial Loans. In addition The obligation of Lenders to make the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until Loans on the date (“Closing Date”) that each hereof is subject to Agent's receipt of the following items as conditions has been satisfiedprecedent:
(a) the Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been Documents duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.Borrower;
(b) Agent shall have received acknowledgments all counterpart originals of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC this Agreement executed by Lenders and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.Borrower;
(c) Agent shall have received duly executed agreements establishing each Dominion Account resolutions of Borrower's board of directors authorizing the Borrowings and related lockboxthe execution, in form delivery and substanceperformance of this Agreement, the Notes and with financial institutions, satisfactory to Agent.any other Loan Documents;
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer certificate of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, incumbency which (i) such certifies the names of the officers of Borrower is Solvent; authorized to sign this Agreement, the Notes and any other Loan Documents and (ii) contains the true signature of each such officer;
(e) consent and confirmation of Guarantors (attached hereto) as to the continued effectiveness of the Guaranties previously executed;
(f) resolutions of each Guarantor's board of directors authorizing the Guaranties and the execution, delivery and performance of any other document relating to such Guaranties;
(g) a certificate of incumbency which (i) certifies the names of the officers of each Guarantor authorized to sign the Guaranties and (ii) contains the true signature of each such officer;
(h) consent of subordinated creditor (attached hereto) from Irwix Xxxxxx xx to the Subordinated Indebtedness;
(i) a certificate signed by an Authorized Person that (i) no Default or Event of Default exists; has occurred and is continuing or will result from the making of the Loans, and (iiiii) the representations and warranties set forth of Borrower contained in Section 9 are true 5 hereof and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under in the other Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and completecorrect as of the date hereof, with the same effect as though made on the date hereof;
(j) all fees and in full force and effectexpenses (including, without amendment except limitation, reasonable fees and expenses of its counsel) in respect of this Agreement;
(k) all required Guaranties and security instruments therefor; and
(l) title insurance policies for all real property pledged to secure the Loans, in such amounts and form as shown; required by Lenders;
(iim) that an attached copy receipt by Agent of resolutions authorizing execution any and delivery all other documents, instruments or agreements in respect of the transactions evidenced and/or contemplated by the Loan Documents is true and complete, deemed reasonable by Borrower and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facilityLenders; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.and
(fn) Agent shall have received a favorable written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPcounsel for Borrower, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory acceptable to Agent.
(g) Agent shall have received copies Lenders, in respect of the charter documents of each Obligor, certified transactions contemplated by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationthis Agreement.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Astrotech International Corp /New)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders Lender shall not be required to fund any requested Loan, issue any Letter of Credit, Credit or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedsatisfied or waived in a manner and pursuant to documentation satisfactory to Lender in its discretion:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document to which an Obligor is a party that is to be delivered on the Closing Date shall have been duly executed and delivered to Agent Lender by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent Lender shall have received acknowledgments of (i) all filings certificates, agreements, or recordations instruments necessary to perfect its Lender’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts (other than Excluded Accounts) and all Investment Property of each Obligor, in each case, solely to the extent required by the terms of the Loan Documents (and subject to the Intercreditor Agreement), (ii) UCC financing statements in appropriate form for filing under the UCC, and (iii) filings with the United States Copyright Office to perfect the Liens in created by the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted LiensLoan Documents.
(c) Agent With respect to all Real Estate to be subject to a Mortgage, Lender shall have received duly executed agreements establishing each Dominion Account received: (i) all modifications to existing Mortgages as shall be required by Lender and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent(ii) such Related Real Estate Documents as it shall request.
(d) Agent Lender shall have received the Intercreditor Agreement, in form and substance satisfactory to Lender, which shall be duly executed by the Obligors, BP and Lender.
(e) Lender shall have received certificates, in form and substance satisfactory to itit in the exercise of its good faith credit judgment, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to as of the initial Loans and transactions hereunderClosing Date, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iiiii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects; and (iviii) such Borrower has complied with all agreements the closing and conditions to be satisfied by it consummation of this Agreement and the transactions contemplated hereby will not conflict with, or cause a breach or default under the Loan Documentsany Material Contract.
(ef) Agent Lender shall have received a certificate of certificate, in form and substance satisfactory to Lender, from a duly authorized officer person of each Obligor, certifying certifying, among other things, (i) that attached copies of such Obligor’s Organic Documents are true and completecomplete in all material respects, and in full force and effect, without amendment except as shown, and that no proceeding for amendment or other modification is pending or contemplated; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facilityAgreement; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent Lender may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent Lender shall have received a written opinion of Pillsbury Xxxxxxxx (i) Bartlit Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx & Xxxxx LLP, as well as local counsel to Borrowers the Obligors, and Parent in Utah (ii) Xxxxx Xxxxxx & Xxxxxx LLP, Wyoming, counsel to Obligors, and Michigan, each in form and substance satisfactory to AgentLender in its good faith credit judgment.
(gh) Agent Lender shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent Lender shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hi) Agent If requested by Lender, Lender shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrowers required by Section 8.6.2, all in compliance with the Loan Documents, together with with, if required by Lender, lender loss payable and additional insured endorsements naming Agent Lender as lender loss payee or and additional insuredinsured thereunder, as appropriatein each case, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward Lender in the exercise of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008good faith credit judgment.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses required to be paid to Agent and Lenders Lender on the Closing Date.
(lk) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of CreditCredit to be issued on the Closing Date, and the payment by Borrowers of all fees and expenses incurred in connection herewith herewith, as well as accounting for any payables stretched beyond their customary payment practices, Excess Availability shall be at least $20,000,000.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, Loan or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Each UK Security Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(c) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC UCC, PPSA and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(cd) Agent shall have received duly executed agreements establishing each Dominion Account in respect of the UK Guarantor, a clear search at the Companies Court at the Royal Court of Justice in London and related lockbox, in form and substance, and with financial institutions, satisfactory to Agentat Companies House.
(de) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Obligor certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is the Company and its Subsidiaries, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing; (iv) with respect to any UK Guarantor, (A) that the Company and each of its Subsidiaries has complied within the relevant timeframe with any notice it has received pursuant to Part 21A of the Companies Xxx 0000 from that UK Guarantor; and no “warning notice” or “restrictions notice” (in each case as defined in Schedule 1B of the Companies Act 2006) has been issued in respect of shares in that UK Guarantor and (B) that the attached copy of its “PSC register” (within the meaning of section 790C(10) of the Companies Act 2006) is true and complete, and in full force and effect, without amendment except as shown; and (v) with respect to any UK Guarantor, the solvency of such UK Guarantor and the ability of such UK Guarantor to pay its debts as they fall due.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx (i) Xxxxxxxxx Xxxxxxx LLP, US counsel to the Obligors, (ii) Xxxxxxx XxXxxxxx, special New Brunswick counsel to the Canadian Guarantor, (iii) Stikeman Elliott LLP, special Ontario counsel to the Canadian Guarantor, and (iv) FieldfisherLLP, special UK counsel to Agent, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates (or their equivalents) for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hi) Agent shall have received copies of all documents, instruments and agreements related to the Revolver Debt and shall be reasonably satisfied with all of the terms and conditions of the Revolver Debt, (ii) Agent shall have received evidence reasonably satisfactory to Agent that Borrower, Revolving Lenders and Revolver Agent shall have consummated the transactions contemplated by the Revolver Loan Agreement, and (iii) Agent and the Revolver Agent shall have entered into the Intercreditor Agreement.
(j) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowerseach Obligor, together with loss payable endorsements naming Agent as loss payee and as additional insured (in the case of Canadian insurance policies, first mortgagee (with respect to the Term Priority Collateral), and in the case of UK Insurance policies, first loss payee), all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ik) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change change, in the good faith opinion of Agent, in the business, operationsassets, Properties, prospects or liabilities, operations, condition (financial or otherwise) of the Borrowers and the Guarantors, taken as a whole, financial condition of any Obligor or in the quality, quantity or value of any Collateral shall have has occurred since September 30March 31, 20082018.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(kl) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received appraisals (performed under such methodologies as are acceptable to Agent in its discretion) by a listing third party appraiser acceptable to the Agent of the Borrowers’ Account Debtors, including the name and address of each such Account Debtorall Term Priority Collateral.
(n) Agent shall have received a Revolver Borrowing Base Certificate and a Term Loan Borrowing Base Certificate, each prepared as of the Closing DateJune 23, 2018. Upon giving effect to the initial funding of Term Loans and issuance of Letters of CreditRevolver Loans, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,0009,500,000.
(o) Agent shall have received reasonably satisfactory evidence that all principal, interest, and other amounts owing in respect of all indebtedness for borrowed money of Obligors (other than indebtedness listed on Schedule 10.2.1 hereto) will be repaid in full on the Closing Date with the proceeds of the initial Loans hereunder on the Closing Date and the proceeds of the Revolver Debt funded on the Closing Date and any and all Liens securing such indebtedness will be terminated and released on the Closing Date.
(p) With respect to each leased property or warehouse of each Obligor, Agent shall have either (i) received a Lien Waiver with respect to such leased property or warehouse or (ii) the Revolver Agent shall have established a Rent and Charges Reserve with respect to such leased property or warehouse; provided, that Agent agrees that all Lien Waivers entered into prior to the date hereof in favor of the Revolver Agent (as agent or bailee for the Agent and Lenders pursuant to the Intercreditor Agreement) are reasonably satisfactory in form and substance to the Agent pending the Lead Borrower’s delivery of new Lien Waivers among Agent, the relevant Obligor and each applicable lessor, warehouseman, freight forwarder and/or customs broker.
(q) Agent shall have received (i) audited financial statements of the Company and its Subsidiaries for the fiscal year ended December 30, 2017, (ii) the internally prepared monthly divisional financial statements of the Company and its Subsidiaries for the months ended January 31, 2018, February 28, 2018, March 31, 2018 and Xxxxx 00, 0000, (xxx) a pro forma balance sheet of the Company and its Subsidiaries dated as of the Closing Date after giving pro forma effect to the funding of the Term Debt, the repayment in full of existing Debt on the Closing Date and (iv) projections of the consolidated balance sheets, results of operations, cash flow and Availability for the 2018 Fiscal Year on a Fiscal Month basis and for each other Fiscal Year ending prior to the Term Loan Termination Date on a Fiscal Year basis.
(r) No action, suit, investigation, litigation or proceeding shall be threatened or pending in any court or before any arbitrator or governmental instrumentality that in Agent’s judgment could reasonably be expected to have a Material Adverse Effect.
(s) Agent shall have received satisfactory evidence that the Obligors have received all governmental and third party consents and approvals as may be appropriate in connection with the Loans and the transactions contemplated by this Agreement.
(t) Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Obligors, except for Permitted Liens and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements reasonably satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Summer Infant, Inc.)
Conditions Precedent to Initial Loans. In addition The obligation of each Lender to make the initial extensions of credit provided for hereunder is subject to the conditions set forth in Section 6.2fulfillment, Lenders shall not be required to fund any requested Loanthe reasonable satisfaction of Agent and each Lender, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):
(a) Notes The Closing Date shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. occur on or before August 6, 2021.
(b) Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance in all material respects with all terms thereof.
(bc) Agent The Lead Arranger shall have received acknowledgments from the Borrowers a detailed business plan or projections of all filings or recordations necessary to perfect the Borrower and its Liens in subsidiaries for the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agentyears 2021 through 2025.
(d) Except as set forth in Section 6.3(c), Agent shall have received certificatesfrom the Borrowers and the Guarantors reasonably satisfactory customary legal opinions (including legal opinions delivered by each such Person’s general counsel), corporate documents and officers’ and public officials’ certifications; a Notice of Borrowing; Organic Documents; customary evidence of authorization to enter into the Loan Documents in respect of the Obligations; and good standing certificates in jurisdictions of formation/organization, in form and substance satisfactory to it, from a knowledgeable Senior Officer each case of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsObligors.
(e) Agent shall have received a solvency certificate of a duly authorized from the chief financial officer or equivalent officer of each Obligorthe Borrowers certifying that the Borrowers and their Subsidiaries, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) on a consolidated basis after giving effect to the titleTransactions, name and signature are Solvent, the form of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it which is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, attached as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to AgentExhibit 6.1(h).
(i) Agent shall have completed its businessreceived confirmation of the filing of all UCC financing statements in the jurisdiction of organization of each Borrower and Guarantor with respect to the Collateral for which a security interest can be perfected by the filing of a UCC financing statement, financial (ii) Agent shall have received stock certificates and legal any other certificated equity interests of the Borrowers and their subsidiaries (other than any equity interests constituting Excluded Assets), together with undated stock powers executed in blank, and (iii) Agent shall have received intellectual property security agreements in proper form for filing with the United States Patent and Trademark Office (“USPTO”) and the United States Copyright Office (“USCO”) for any patents, trademarks or copyrights registered with the USPTO or USCO, respectively (or applications therefor), that do not constitute Excluded Assets, together with an authorization from all Borrower and Guarantors that Agent can file such intellectual property security agreements with the USPTO or the USCO, as applicable.
(g) All fees earned, due diligence and payable on the Closing Date pursuant to this Agreement and the Fee Letter and expenses earned, due and payable on the Closing Date pursuant to this Agreement shall, upon the closing under the Loan Documents, have been paid (which amounts may be offset against the proceeds of the applicable Loans).
(h) Agent and Lenders shall have received with respect to the Obligors, including a rollat least ten (10) Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-forward of its previous field examinationmoney laundering rules and regulations, with results satisfactory to Agent. No material adverse change in including, without limitation, the businessPatriot Act.
(i) Since December 31, operations2020, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral no Material Adverse Effect shall have occurred since September 30, 2008occurred.
(j) Borrowers and their respective Subsidiaries shall have TTM Consolidated EBITDA of not less than $55,700,000 for the period ending March 31, 2021.
(k) Agent shall have received, each received the results of lien searches with respect to the Borrowers and their respective Subsidiaries in form jurisdictions reasonably selected by it.
(l) Agent shall have received evidence that all insurance required hereunder is currently effective and substance satisfactory to that the related policies name Agent, interim financial statements on behalf of the Lenders, as lenders loss payee or additional insured, as applicable.
(m) After giving effect to the Transactions on a Pro Forma Basis, the Total Leverage Ratio as of the Closing Date shall not more be greater than 30 3.25:1.00.
(n) All existing Debt for borrowed money of Holdco and its Subsidiaries, other than Debt owing to Agent and Lenders which shall be subject to the terms of this Agreement, shall be repaid in full and all liens relating thereto extinguished on or prior to the Closing Date except to the extent such Debt constitutes Debt permitted pursuant to Section 10.2.1 hereof.
(o) At least five (5) days prior to the Closing Date for: Date, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender so requesting shall have received a Beneficial Ownership Certification and all other related “know your customer” documents and information with respect to such Borrower.
(p) The Agent and the Lenders shall have received from the Borrowers the aggregate amount of fees and expenses payable to each of them by the Borrowers in connection with the consummation of the Transaction, in the case of expenses, to the extent invoiced in writing at least two business days (or such shorter period as the Borrowers may agree) in advance of Closing.
(q) The Agent shall have received the financial statements described in (i) Parent and its Subsidiaries on a consolidated basis; Section 10.1.2(a) for the Fiscal Year ending December 31, 2020, and (ii) Parent and its Subsidiaries on a consolidating basis Section 10.1.2(b) for the Fiscal Quarter ending March 31, 2021 (but only on a group by group basis for each of the HRI Groupcollectively, the Eldorado Group“Historic Financial Statements”), the SCP Groupwhich shall, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by in each of the signatories theretocase, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect acceptable to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (American Vanguard Corp)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Agent, Issuing Bank and Lenders shall not be required to fund any requested LoanLoans, issue or arrange for issuance of any Letter Letters of Credit, or otherwise extend credit or grant any other accommodation to Borrowers hereunderor for the benefit of Borrowers, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received the Real Estate Related Documents for all Real Estate subject to a Mortgage, landlord agreements for the Borrowers’ office located in Plymouth, Minnesota, and bailee or warehouseman agreements for each of the Borrowers’ leased locations in the United States and Canada, each in form and substance satisfactory to Agent.
(d) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(de) Agent shall have received duly executed account control agreements establishing Agent’s control over each of the Borrowers’ accounts at banking and financial institutions other than Bank of America, each in form and substance satisfactory to Agent.
(f) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such each Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 9, in the Fee Letter and in all other documents previously delivered by one or more Borrowers to Agent are true and correct; and (iv) such each Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents and has obtained all governmental and third party consents and approvals as may be appropriate or required in connection with the Loan Documents; and (v) to the best of Borrowers’ knowledge, the Dealer Finance Agreements are sufficient in all materials respects for the financing needs of the Borrowers’ dealers.
(eg) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fh) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPRobins, Kaplan, Xxxxxx & Xxxxxx L.L.P., as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory to Agent.
(gi) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hj) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrowers (including certificates naming Agent as loss payee or additional insured, as applicable), all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ik) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examinationexamination and a review of the Borrowers’ capital structure and indebtedness, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30March 31, 20082009, and no change, occurrence or development shall have occurred or become known to Agent since March 31, 2009, that would reasonably be expected to have a Material Adverse Effect on the Borrowers and their subsidiaries, taken as a whole.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(kl) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateOctober 30, 2009. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00010,000,000.
(n) Agent shall have received, in form and substance satisfactory to it, interim financial statements for the Borrowers for the periods ending August 31, 2009, and September 30, 2009, in each case with results that are materially consistent with the results provided by the Borrowers to Agent on October 6, 2009.
(o) Arctic Cat shall have committed to and entered into a new Dealer Finance Agreement for its U.S. dealers in a principal amount of at least $300,000,000.
(p) Borrowers and Agent shall have received a payoff letter from Xxxxx Fargo with respect to the Borrowers’ preexisting credit facility, which payoff letter shall be in form and substance satisfactory to Agent.
(q) There shall have been an absence of any material disruption or any material adverse change in the conditions of the financial, banking and credit markets that Agent, in its sole discretion, deems material in connection with the syndication of the Obligations hereunder.
Appears in 1 contract
Conditions Precedent to Initial Loans. Subject to Section 10.1.11, In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers Borrower hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers Borrower and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments executed copies of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received a certificate or certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer or the Treasurer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ed) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign executing the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fe) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Weil, Gotshal & Xxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and MichiganBorrower’s general counsel, each in form and substance satisfactory to Agent.
(gf) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hg) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersBorrower, together with, with respect to property insurance in respect of property constituting Collateral, loss payable and additional insured endorsements naming Agent as loss payee and additional insured, as applicable, all in compliance with the Loan Documents.
(h) Agent shall have (i) received (A) a pro forma consolidated balance sheet of Borrower dated as of the Closing Date reflecting no material adverse change from the most recent pro forma consolidated balance sheet of Borrower delivered to Agent, together (B) financial projections of Borrower evidencing Borrower’s ability to comply with endorsements naming Agent the financial covenants set forth herein on a pro forma basis and (C) interim consolidated financial statements for Borrower dated as lender loss payee or additional insuredof a date not more than 30 days prior to the Closing Date, as appropriate, in each case in form and substance reasonably satisfactory to Agent.
Agent and (iii) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examinationexamination and environmental due diligence (including environmental reports), in all cases, with results reasonably satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082005. Since December 31, 2005 there has been no material disruption of or material adverse change in conditions in the financial, banking or syndication markets that Agent, in its discretion, deems material in connection with the syndication of the Revolving Commitments.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers Borrower shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nj) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateJanuary 31, 2007. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers Borrower of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000100,000,000.
(k) Agent shall have received an officer’s certificate demonstrating in reasonable detail, and setting forth the calculations necessary to verify, that the Obligations constitute a “Permitted Credit Facility” under (and as defined in) each indenture governing any of the Existing Senior Notes.
(l) Borrower shall have obtained all Governmental Authority and other third party consents and approvals as may be reasonably necessary or appropriate to execute the Loan Documents and perform their obligations hereunder and thereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Ak Steel Holding Corp)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required The Lender’s obligation to fund any requested Loanthe initial Loans, and to issue any or cause to be issued the initial Letter of Credit, is subject to the satisfaction or otherwise extend credit to Borrowers hereunder, until waiver on or before the date (“Closing Date”) that each hereof of the following conditions has been satisfiedprecedent:
(a) Notes Lender shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by received each of the signatories theretoagreements, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateralopinions, as well as UCC and Lien searches reports, approvals, consents, certificates and other evidence satisfactory to Agent that such Liens are documents set forth on the only Liens upon closing delivery list attached hereto as Schedule 14.01-A in each case properly executed by the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account appropriate party and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.Lender;
(eb) Agent Since December 31, 2009, no event shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect, as determined by Lender in its sole discretion;
(c) Lender shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and payment in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses payable to it by Borrowers or any other Person in connection herewith, on or before disbursement of the initial Loans hereunder;
(d) As shown on Schedule 14.01-B, Lender shall have determined that immediately after giving effect to (i) the making of the initial Loans, including without limitation the Revolving Loans, if any, requested to be made on the date hereof, (ii) the issuance of the initial Letter of Credit, if any, requested to be made on such date, (iii) the payment of all fees due upon such date and (iv) the payment or reimbursement by Borrowers of Lender for all closing costs and expenses incurred in connection herewith with the transactions contemplated hereby, Borrowers have Excess Availability as well as any payables stretched beyond their customary payment practicesof the date of this Agreement of not less than Six Hundred Thousand and No/100 Dollars ($600,000.00); and
(e) The Borrowers shall have executed and delivered to Lender all such other documents, Availability shall be at least $20,000,000instruments and agreements which Lender determines are reasonably necessary to consummate the transactions contemplated hereby.
Appears in 1 contract
Samples: Credit and Security Agreement (Clark Holdings Inc.)
Conditions Precedent to Initial Loans. In addition At the time of the making of the initial Loans hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to the conditions set forth initial Loans (including, without limitation, Borrower's obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any Closing Fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in Section 6.2full, Lenders and the Lender shall not be required have received the following, in form and substance reasonably satisfactory in all respects to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedLender:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been The duly executed and delivered to Agent by each counterparts of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.this Agreement;
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in The duly executed Note evidencing the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.Revolving Loan Commitment;
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.This subsection is not applicable;
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower This subsection is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.not applicable;
(e) Agent shall have received a certificate This subsection is not applicable;
(f) Duly executed Certificate of a duly authorized officer Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(g) Duly executed Certificates of the Secretary or Assistant Secretary of each Obligorof 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;
(h) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) that attached copies the name, title and true signature of each officer of such Obligor’s Organic Documents are true and completeentities executing the Credit Documents, and in full force and effect, without amendment except as shown; (ii) that an attached copy the bylaws or comparable governing documents of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.entities;
(fi) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received Certified copies of the charter documents certificate or articles of incorporation of each Obligor, Credit Party certified by the Secretary of State or other appropriate official the Secretary or Assistant Secretary of such Obligor’s jurisdiction Credit Party, together with certificates of organization. Agent shall have received good standing certificates for each Obligoror existence, issued by as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(j) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(k) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(l) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(m) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(n) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(o) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender 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;
(p) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(q) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender and each of the Lender;
(r) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2005, 2006 and 2007; and
(s) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending March 31, 2008. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(t) The Loans to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.governmental authority;
(hu) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, All corporate proceedings and all other legal matters in compliance connection with the Loan Documentsauthorization, together with endorsements naming Agent as lender loss payee or additional insuredlegality, as appropriate, each validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance satisfactory to Agent.the Lender; and
(iv) Agent shall have completed its business, financial The status of all pending and legal due diligence of Obligorsthreatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) description of any Obligor or in damages sought and the qualityclaims constituting the basis therefor, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each been reported in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior writing to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP GroupLender, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000satisfied with such status.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition The obligation of the Lenders to fund the initial Loans shall be subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter satisfaction of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedprecedent on or prior to the Closing Date:
(a) Notes shall have been executed by Borrowers The Lenders and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments each of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockboxfollowing, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, each case in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans Agent and transactions hereunder, the Lenders:
(i) such Borrower is Solventthe Credit Documents, duly authorized, executed and delivered by each of the parties thereto; (including the Guaranty);
(ii) no Default or Event judgment lien and UCC searches, and such other searches of Default exists; the records of Government Instrumentalities as the Agent shall require, performed with respect to the Borrowers, the Obligors and each of their Subsidiaries in all relevant jurisdictions;
(iii) the representations and warranties set forth legal opinion of Borrowers' Counsel in Section 9 are true and correct; and the form of Exhibit B;
(iv) such Borrower has complied other legal opinions as the Lenders may reasonably request;
(v) certified copies of:
(A) the articles of incorporation and by-laws (or other organizational documents) of each of the Borrowers and each Obligor (that is not an individual);
(B) good standing certificates with respect to the Borrowers and each Obligor (that is not an individual or a trust) issued by the appropriate authority in the applicable jurisdiction of organization;
(C) incumbency certificates for the signatories of the Borrowers and each Obligor (that is not an individual), and resolutions of the Borrowers and each Obligor (that is not an individual) approving the Credit Documents to which it is a party and the transactions contemplated thereby; and
(D) a Budget for calendar years 1998-2002 and all agreements combined financial statements of the Borrowers and conditions their combined Subsidiaries requested by the Lenders; provided, that the Borrowers must deliver a Budget to be satisfied by it under the Lenders and the Agent on a quarterly basis for so long as any Loan Documentsis outstanding.
(evi) Agent shall have received a certificate of a duly authorized officer certificates of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Borrowers and Obligors certifying that:
(A) all Credit Documents is true executed by the Borrowers and complete, and that such resolutions Obligors on or prior to the Closing Date are in full force and effect, were duly adopted, have not been amended, modified or revokedthe Borrowers and the Obligors are in compliance with all covenants and provisions thereof, and constitute no breach or event of default (or any event which would become a breach or event of default with the giving of notice or passage of time or both) has occurred and is continuing under any such Credit Document;
(B) all resolutions adopted representations and warranties of the Borrowers and the Obligors contained in the Credit Documents are true, correct and complete in all material respects;
(C) all financial statements and information provided to the Lenders are true, correct and complete in all material respects; each balance sheet fairly presents the consolidated financial position of the Borrowers, the Guarantors, CGX and their Subsidiaries as at the date indicated and was prepared in accordance with GAAP except as specifically noted therein; there has occurred no material adverse change in the financial position of the Borrowers, the Guarantors, CGX and their Subsidiaries since the date of the most recent balance sheet provided to the Lenders; and the financial statements (or the footnotes thereto) provided to the Lenders disclose all liabilities, contingent or otherwise, of the Borrowers, the Guarantors, CGX and their Subsidiaries required to be disclosed in accordance with GAAP; the Borrowers are currently in discussions with their accounting firms with respect to this credit facilitythe proper accounting treatment of certain options and other non-cash compensation arrangements that have been or may be entered into with certain management employees, the results of which will result in additional non-cash charges to income for fiscal 1997 and subsequent years; and and
(iiiD) no act, event or circumstance has occurred with respect to the titleBorrowers, name the Obligors or any of their Subsidiaries or otherwise which has had or could have a Material Adverse Effect;
(b) The Warrant Agreement and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified Warrant Registration Rights Agreement shall have been duly authorized, executed and delivered by the applicable Obligor parties thereto and Warrants representing 3.0% of the fully diluted common stock of the Warrant Issuers shall have been duly authorized, executed and delivered to the Lenders.
(c) All Taxes, fees and expenses required to be paid by the Borrowers on or before the Closing Date shall have been paid.
(d) All conditions precedent set forth in writingSection 3.2 shall have been ----------- satisfied.
(e) The Borrowers and Obligors shall have obtained all Required Approvals, except for those which are obtainable only at a later stage and which the Lenders are satisfied, on the basis of evidence provided by the Borrowers, will be obtainable in the ordinary course prior to the time required, and all Required Approvals obtained shall be final, nonappealable and not subject to any onerous or unusual conditions.
(f) Agent A First-Priority security interest in the Collateral existing on the Closing Date shall have received been created and perfected (provided, however, that a written opinion second-priority security interest in the RFC Collateral may be created and perfected), and shall continue to be perfected, in favor of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPthe Agent on behalf of the Lenders in all relevant jurisdictions, as well as local counsel to Borrowers and Parent in Utah there shall be no other Liens on the Collateral (other than on the RFC Collateral and Michigan, each in form and substance satisfactory to Agentother than Permitted Liens).
(g) Agent shall have received copies A duly executed satisfaction and release of all liens created under the charter documents of each ObligorFirst Union Loan Agreement, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each satisfactory in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior shall be delivered to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been a duly executed and Form UCC-3 shall be delivered to the Agent by each of the signatories thereto, and be or a nominee thereof for filing in form and substance satisfactory to each Lender in their sole discretionall appropriate places.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Credit Agreement (Cais Internet Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) [Reserved].
(d) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(de) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is the Obligors, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower each Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxx, Halter & Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to the Borrowers and Parent in Utah and Michiganthe Guarantors, each in form and substance satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationqualification and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(ij) Agent shall have received (a) unaudited consolidated financial statements of the Companies and their respective Subsidiaries for the month ended September 30, 2011 and the related consolidated statements of income or operations and cash flows and balance sheets for such month, for the Measurement Period ended on that date and for the portion of the Fiscal Year then elapsed, setting forth in comparative form corresponding figures for the preceding Fiscal Year, prepared by management of the Companies consistent with past practices, and (b) financial projections of Parent and its Subsidiaries, evidencing compliance with Section 10.3.
(k) Agent shall have completed its business, financial and legal due diligence of Obligors, including a rollField Exam within 90 days of the Closing Date, and shall have received all documentation or other information that the Agent requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-forward of its previous field examinationmoney laundering rules and regulations, including the Patriot Act, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor (other than an Immaterial Obligor) or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082010.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(kl) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall , including the reasonable fees and expenses of Agent’s counsel. Agent acknowledges that the Borrowers have been duly executed deposited with the Agent a deposit of $50,000 against all fees and delivered to Agent by each of expenses incurred in connection with the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretionTransaction.
(m) Agent shall have received a listing evidence that the Restructuring has occurred, and the Restructuring, the Sponsor Preferred Stock, and all other agreements between the Obligors and the Sponsor are on terms and conditions satisfactory to the Agent and that the capital structure of Parent and its Subsidiaries is satisfactory to the Borrowers’ Account Debtors, including the name and address of each such Account DebtorAgent.
(n) Agent shall have received a certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of Borrower Agent, either (i) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Obligor and the validity against each Obligor of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect or (ii) stating that no such consents, licenses or approvals are so required.
(o) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateOctober 31, 2011. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practicesherewith, Availability shall be at least $20,000,00012,000,000.
(p) Agent shall have received evidence that the Debt incurred and outstanding pursuant to the Existing Debt Documents has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Debt Documents (and all Liens other than Permitted Liens) have been or concurrently with the Closing Date are being released.
Appears in 1 contract
Samples: Loan and Security Agreement (Installed Building Products, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“"Closing Date”") that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document (other than any Patent Assignment, Joinder Agreement, Mortgage or Related Real Estate Document which, if applicable, shall be executed and delivered after the Closing Date in accordance with this Agreement) shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof. All stock certificates and other evidences of Equity Interests and all instruments in which Agent is granted a security interest as security for the Obligations shall have been duly delivered to Agent, together with duly executed stock powers, endorsements or other instruments of transfer in form and substance satisfactory to Agent.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) [Intentionally omitted.]
(d) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(de) Agent shall have received certificatesa certificate, in form and substance satisfactory to itAgent, from a knowledgeable Senior Officer of each Borrower Obligor certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower Obligor is SolventSolvent (other than Inactive Subsidiaries); (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate certificate, in form and substance satisfactory to Agent, of a duly an authorized officer Senior Officer of each Obligor, certifying (i) that attached copies of such Obligor’s 's Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx Xxxxxxxxxxx & Price, LLP, as well as any local counsel to Borrowers and Parent in Utah and Michiganor Agent, each in form and substance satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s 's jurisdiction of organization and each jurisdiction where such Obligor’s 's conduct of business or ownership of Property necessitates qualification.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as satisfactory lender loss payee or additional insured, as appropriate, each payable endorsements in form and substance satisfactory to favor of Agent.
(ij) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, financial projections and interim financial statements as of a date no more than 30 days prior to the Closing Date with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)2010.
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00010,000,000.
(m) Borrowers shall have paid in full all principal of and accrued and unpaid interest on the Prior Bank Debt and all fees, costs, expenses and other "Obligations" (as defined in the Prior Bank Agreement) which remain unpaid or are outstanding immediately prior to the Closing Date, and the Prior Bank Agreement, all letters of credit issued thereunder and all Liens granted to secure the Prior Bank Debt shall have been fully terminated, and Agent shall have received a payoff letter, Lien releases and other appropriate evidence to such effect.
(n) Agent shall have received an appraisal of Borrowers' owned Equipment prepared by a certified appraiser and otherwise in form and substance satisfactory to Agent.
(o) Borrowers shall have requested the issuance of Letters of Credit hereunder to "back stop" the Comerica Letters of Credit in a manner satisfactory to Agent and Issuing Bank, and all conditions precedent to Issuing Bank's issuance of such Letters of Credit hereunder on the Closing Date shall have been satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Frozen Food Express Industries Inc)
Conditions Precedent to Initial Loans. In addition The obligation of the Lender to make the initial Loans and of the Issuing Bank to issue the initial Letter of Credit is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each satisfaction of the following conditions has been satisfiedprecedent on or prior to the Closing Date:
(a) Notes shall have been executed by Borrowers and delivered to each The Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateralfollowing agreements, as well as UCC documents, certificates and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, opinions in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans Lender and transactions hereunder, duly executed and delivered by the parties thereto:
(i) such Borrower is Solvent; This Agreement;
(ii) no Default or Event The Revolving Credit Note, substantially in the form of Default exists; EXHIBIT A hereto;
(iii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3 hereof and the representations and warranties set forth in Section 9 are true and correct; and applicable provisions of the Security Documents;
(iv) such Borrower has complied with all agreements and conditions to be satisfied by it under Borrowing Base Report as of the Loan Documents.Closing Date;
(ev) Agent shall have received a Notice of Borrowing or Conversion as of the Closing Date;
(vi) A certificate of a duly authorized officer the Secretary or an Assistant Secretary of each Obligor, certifying (i) that attached copies the Borrower with respect to resolutions of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy its Board of resolutions Directors authorizing the execution and delivery of the Loan Documents is and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officer(s);
(vii) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of formation, certified by said Secretary of State as being a true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.correct copy thereof;
(fviii) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies The By-laws of the charter documents of each ObligorBorrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of State or other appropriate official the Borrower as being a true and correct copy thereof;
(ix) A certificate of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State of Delaware as to legal existence and good standing of the Borrower in such state;
(x) A certificate of the Secretaries of State of each state in which the Borrower is doing business as to the due qualification and good standing of the Borrower as a foreign corporation in such states;
(xi) An opinion addressed to the Lender from Hale xxx Dorr LLP, special counsel to the Borrower and the Subsidiaries;
(xii) A certificate of the chief financial officer of the Borrower as to the solvency of the Borrower, the accuracy of the Borrower's representations and warranties, compliance with financial covenants on a pro forma basis (giving effect to this Agreement) as of June 30, 2000, the value of all stock and cash consideration paid in connection with Permitted Acquisitions for the fiscal quarter ending September 30, 2000, and such other matters as the Lender may request;
(xiii) Receipt of unaudited consolidated and consolidating financial statements of the Borrower for the twelve months ended June 30, 2000;
(xiv) Receipt of evidence satisfactory to the Lender of the termination of all UCC-1 financing statements relating to liens granted to a secured party other than the Lender on all or substantially all of the assets of the Borrower or any Guarantor; and
(xv) Such other appropriate official documents, instruments, opinions and certificates and completion of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business other matters, as the Lender may reasonably deem necessary or ownership of Property necessitates qualificationappropriate.
(hb) Agent No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have received copies a materially adverse affect on the assets, business, financial condition or prospects of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to AgentBorrower.
(ic) Agent The Borrower shall have completed its business, financial and legal due diligence of Obligors, paid to the Lender all fees to be paid hereunder (including a roll-forward of its previous field examination, with results satisfactory pursuant to Agent. No material adverse change in the business, operations, Properties, prospects Section 2.5(d) hereof) on or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders this Agreement shall not be required effective and there shall be no obligation or requirement, on or after the Closing Date, to fund any requested an initial request for a Loan, issue initial issuance of any Letter of Credit, or otherwise extend initial credit to Borrowers any Credit Party hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedsatisfied or waived:
(a) Amended and Restated Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor Credit Party shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of received, in proper form for filing or recording, all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens; provided that no such filings or recordations shall be required with respect to the Fixed Asset Priority Collateral (as defined in the Intercreditor Agreement) unless and until corresponding filings or recordations are required to be provided to the Term Loan Agent in accordance with the Term Loan Documents.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent[Reserved].
(d) Agent shall have received certificatesa certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower Agent certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is the Credit Parties, taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower each Credit Party has complied with all agreements and conditions to be satisfied by it under the Loan Documents; and (v) as to matters set forth in Section 6.1(k) (and attaching the Term Loan Documents).
(e) Agent shall have received a certificate of a duly authorized officer of each ObligorCredit Party, certifying (i) that attached copies of such ObligorCredit Party’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified modified, revoked or revokedcontradicted by any other resolution; (iii) that attached copies of such Credit Party’s good standing certificates are true, complete and constitute all resolutions adopted with respect to this credit facilitycorrect copies from such Credit Party’s jurisdiction of organization certified by the appropriate official of such jurisdiction as of a recent date; and (iiiiv) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor Credit Party in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxx Xxxxxxx LLPXxxxxx & Xxxxx, PLLC, as well as local counsel to Borrowers the Credit Parties, address to the Agent, in its capacities as administrative agent and Parent in Utah collateral agent, and Michiganeach of the Lenders, each in form and substance reasonably satisfactory to the Agent.
(g) Agent shall have received copies of the charter documents of each ObligorCredit Party, certified by the Secretary of State or other appropriate official of such ObligorCredit Party’s jurisdiction of organization. Agent shall have received good standing certificates for each ObligorCredit Party, issued by the Secretary of State or other appropriate official of such ObligorCredit Party’s jurisdiction of organization and each jurisdiction where such ObligorCredit Party’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersCredit Parties, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nj) Agent shall have received a Borrowing Base Certificate prepared as of November 30, 2014.
(k) Agent shall have received evidence of the effectiveness, prior to or substantially with the occurrence of the Closing Date. Upon , of the Term Loan Documents and the receipt by Borrowers of loan proceeds of $100,000,000, in each case, in compliance in all material respects with all applicable laws and regulations, with the receipt of all necessary material governmental, stockholder and third party consents and approvals.
(l) Agent shall have received the Intercreditor Agreement, duly executed and delivered by the Term Loan Agent and acknowledged by the Credit Parties, in form and substance reasonably satisfactory to the Agent.
(m) The Hartsville Acquisition has been consummated in accordance with the terms of the Hartsville Acquisition Documents, without giving effect to any amendments or waivers thereto by Parent, or consents by Parent thereunder, that are materially adverse to the interests of the Lenders (in their capacity as such) without the consent of the Agent (such consent not to be unreasonably withheld, conditioned or delayed) and Borrower Agent shall have certified Borrowers’ compliance with clause (d) of the definition of “Permitted Acquisition” (including reasonably detailed calculations thereof).
(n) After giving effect to the initial funding consummation of Loans the Hartsville Acquisition and issuance Term Loan Credit Agreement, none of Letters the Borrowers and their Subsidiaries shall have (or guarantee or provide collateral security for) any Debt for borrowed money owed to a Person other than a Borrower or other Credit Party, except for (i) Debt pursuant to or in respect of Creditthe Loan Documents and (ii) Permitted Debt.
(o) Since December 31, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as 2013, there shall not have occurred or arisen any payables stretched beyond their customary payment practicesCompany Material Adverse Effect.
(p) Lenders shall have received, Availability shall be at least $20,000,0003 Business Days prior to the Closing Date, all documentation or other information as is reasonably requested in writing at least 10 Business Days prior to the Closing Date by Agent about Credit Parties and their respective Subsidiaries reasonably determined to be required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition The obligation of the Lender to ------------------------------------- make the initial Loans and to issue the initial Letter of Credit is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each satisfaction of the following conditions has been satisfiedprecedent:
(a) Notes shall have been executed by Borrowers and delivered to each The Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateralfollowing agreements, as well as UCC documents, certificates and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, opinions in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans Lender and transactions hereunder, duly executed and delivered by the parties thereto:
(i) such Borrower is Solvent; This Agreement;
(ii) no Default or Event The Revolving Credit Note, substantially in the form of Default existsExhibit A-1 hereto, the Tranche A Note, substantially in the form of ----------- Exhibit A-2 hereto, and the Tranche B Note, substantially in the form of ----------- Exhibit A-3 hereto; -----------
(iii) the representations Notice of Revolving Credit Borrowing or Conversion and warranties set forth in Section 9 are true and correct; and Notice of Tranche B Borrowing, where applicable;
(iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a A certificate of a duly authorized officer the Secretary or an Assistant Secretary of each Obligor, certifying (i) that attached copies the Borrower with respect to resolutions of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy the Board of resolutions Directors authorizing the execution and delivery of the Loan Documents is and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(v) The Certificate of Incorporation of the Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.correct copy thereof;
(fvi) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies The Bylaws of the charter documents of each ObligorBorrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of State or other appropriate official the Borrower as being a true and correct copy thereof;
(vii) A certificate of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in such state;
(viii) A certificate of the Secretary of State of each state in which the Borrower is required by law to qualify as a foreign corporation as to the due qualification and good standing of the Borrower as a foreign corporation in such states;
(ix) An opinion addressed to the Lender from Finnegan, Hickey, Xxxxxxxx & Xxxxxxx, P.C., counsel to the Borrower; and
(x) Such other appropriate official documents, instruments, opinions and certificates and completion of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business other matters, as the Lender may reasonably deem necessary or ownership of Property necessitates qualificationappropriate.
(hb) Agent No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the reasonable judgment of the Lender, and except as disclosed on Exhibit C as updated by --------- Securities Filings subsequent to the date hereof, might adversely affect the transactions contemplated hereby or might have received copies a materially adverse effect on the assets, business, financial condition or prospects of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to AgentBorrower.
(ic) Agent The Borrower shall have completed its businesspaid to the Lender all fees to be paid hereunder (including pursuant to Section 2.7(a), financial (b) and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects (c) hereof) on or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Term Loan Closing Date.
(ld) The Intercreditor Agreement Borrower shall have been duly executed completed an initial public offering under the Securities Act of 1933, as amended (the "Initial Public Offering"), of ----------------------- shares of its common stock and delivered to Agent by each shall have received net proceeds from such offering (after taking account of all underwriting and other transactions costs of such offering, of at least $10,000,000, and shall have used a portion of the signatories theretoproceeds of the Initial Public Offering to satisfy and discharge all obligations of the Borrower to The First National Bank of Boston, and be in form and substance satisfactory to each the Lender in their sole discretion.
(m) Agent shall have received a listing certificate of an officer of the Borrowers’ Account Debtors, including Borrower or other evidence satisfactory to it that such offering was completed and such proceeds were received by the name Borrower and address of each that such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as obligations of the Closing Date. Upon giving effect to the initial funding of Loans Borrower were satisfied and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000discharged.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Each of the following conditions has been satisfiedis a condition precedent to Agent and Lenders making the initial Loans hereunder:
(a) Notes Agent shall have been executed received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by the Existing Lenders of their respective financing arrangements with Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and each other Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and such Borrower or any other Obligor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or any other Obligor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Agent may have requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of each Borrower and each Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or such Guarantor, as is set forth herein and such document as shall set forth the organizational identification number of such Borrower, or such 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 any Obligor since the date of Agent's latest field examination (not including for this purpose the field review referred to in clause (d) below) and no change or event shall have occurred which would impair the ability of any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(d) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which each case shall be satisfactory to Agent and the Term Lender, not more than three (3) Business Days prior to the date hereof;
(e) Agent shall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third Persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and Liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, subject to the provisions of SECTION 9.24 hereof, Collateral Access Agreements by owners and lessors of leased premises of each Borrower and by processors and warehouses at which Collateral is located;
(f) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $5,000,000 after giving effect to the initial Loans made or to be made in connection with the initial transactions hereunder and the payment of accrued interest on Subordinated Debt and the payment of all fees and expenses in connection with the transactions contemplated hereby;
(g) Agent shall have received, in form and substance satisfactory to Agent, (i) a Deposit Account Control Agreement by and among Agent, Parent and Fleet National Bank, and Deposit Account Control Agreements among Agent, Kirkland's and Bank of America, N.A., AmSouth Bank, and Wachovia, rexxxxxxxxxx, in each case duly authorized, executed and delivered by such bank and such Obligor, and (ii) evidence of Borrowers' delivery of a Payment Direction Letter to each Lender other bank at which any Borrower maintains a deposit account;
(h) Agent shall have received evidence, in form and substance satisfactory to Agent, that requests issuance Agent has a valid perfected first priority security interest in and Lien upon all of a Note. Each the Collateral;
(i) Agent shall have received and reviewed lien and judgement search results for the jurisdiction of incorporation of each Obligor, the jurisdiction of the chief executive office of each Obligor and all jurisdictions in which assets of each Obligor is located, which search results shall be in form and substance satisfactory to Agent;
(j) Agent shall have received environmental audits of the Real Property to be subject to the Mortgage conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology satisfactory to Agent, confirming that (i) each Borrower is in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(k) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Loan Document Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as lender's loss payee, mortgagee and additional insured;
(l) Agent shall have received, in form and substance 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;
(m) the other Financing Agreements (including the Mortgage) and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.Term Lender; and
(n) Agent shall have received a Borrowing Base Certificate prepared as reviewed, and found acceptable in all respects, each of the Closing Date. Upon giving effect Subordinated Debt Documents, and all Subordinated Debt shall be expressly subordinated in right of payment to the initial funding of Loans prior payment and issuance of Letters of Credit, and the payment by Borrowers satisfaction in full of all fees of the Obligations, all in a manner and expenses incurred in connection herewith pursuant to such written agreements binding on the holders of such Subordinated Debt as well as any payables stretched beyond will be satisfactory to Agent and Lenders and their customary payment practices, Availability shall be at least $20,000,000respective counsel.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, the Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, Loan or otherwise extend credit to Borrowers any Borrower within a Borrower Group, nor shall Issuing Banks or any Applicable Agent have any obligation to issue any Letter of Credit for the account of any Borrower within such Borrower Group hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedsatisfied with respect to such Borrower Group and its members:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent Agents by each of the signatories thereto, and each Obligor within such Borrower Group shall be in compliance with all terms thereof.
(b) Agent Each of the Applicable Agents shall have received (i) acknowledgments of all those filings or recordations necessary to perfect its Liens in the CollateralCollateral (including any applicable filing or registrations with respect to Canadian Obligors) as are consistent with the Existing Loan Agreement and the related loan documents, subject to Borrowers’ commercially reasonable efforts prior to the Closing Date with respect to any additional filings against Collateral not subject to the Existing Loan Agreement, as well as UCC (ii) UCC, PPSA and Lien searches and other evidence satisfactory to Agent Agents that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent Agents shall have received duly executed agreements establishing Deposit Account Control Agreements for each Dominion Deposit Account of each Obligor (other than SEI) within such Borrower Group and any related lockbox, in form and substance, and with financial institutions, satisfactory to AgentAgents to the extent required pursuant to Section 8.2.4.
(d) Agent Agents shall have received certificates, in form and substance satisfactory to itthem, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunderrelated thereto on the Closing Date, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 Sections 9.1.1, 9.1.2, 9.1.3, 9.1.6, 9.1.14 (with respect to the PATRIOT Act and other Anti-Terrorism Laws), and 9.1.24 (the “Specified Representations”) are true and correct; and (iv) such Borrower has complied with all agreements and conditions required to be satisfied by it on the Closing Date under the Loan Documents.
(e) Agent Agents shall have received a certificate of a duly authorized officer of each ObligorObligor within such Borrower Group, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; , (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; , and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent Agents may conclusively rely on this certificate until it is they are otherwise notified by the applicable Obligor in writing.
(f) Agent Agents and Lenders shall have received a written opinion of Pillsbury Xxxxx Day, counsel to Borrowers, Xxxxx & Lardner LLP, Michigan counsel to EGI, and Blake, Xxxxxxxx Xxxx & Xxxxxxx LLP, as well as Borrowers’ Canadian local counsel, and local counsel to Borrowers and Parent for state or provincial jurisdiction of an Obligor’s organization or in Utah and Michigan, which a Mortgage (or amendment thereto) or other Lien filing is being recorded in each case in form and substance satisfactory to AgentAgents.
(g) Agent Agents shall have received copies of the charter documents of each ObligorObligor within such Borrower Group, certified as appropriate by the Secretary of State or other appropriate another official of such Obligor’s jurisdiction of organization. Agent Agents shall have received good standing certificates / certificates of status for each ObligorObligor within such Borrower Group, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent There shall not have occurred since December 31, 2007 any event or condition that has had, or could be reasonably expected, either individually or in the aggregate, to have, a “Material Adverse Effect” (as defined in the Merger Agreement), and SEHC (as defined in the Merger Agreement) has not, without the prior written consent of Administrative Agent, made any consent or request to SEI and its Subsidiaries in connection with clause (iv) of the definition of “Material Adverse Effect” in Section 4.1(a) of the Merger Agreement that is materially adverse to Agents’ and Lenders’ interests.
(i) Agents and the Lenders shall have received copies received: (a)(I) unaudited consolidated balance sheets, and related statements of policies income and cash flow of SEI, for each month and Fiscal Quarter of the current Fiscal Year in each case ended at least 45 days before the Closing Date, which balance sheet and statement of income shall be prepared in accordance with GAAP (without the requirement of footnote disclosures), and (II) consolidating financial information on a subsidiary or certificates divisional basis, in each case with the same level of insurance detail and in the same form as currently provided under the Existing Loan Agreement, (b) with the same level of detail and in the same form as currently provided by Borrowers under the Existing Loan Agreement, a pro forma consolidated and consolidating balance sheet of SEI as of the date of the most recent consolidated balance sheet delivered pursuant to the preceding clause (a) and a pro forma consolidated and consolidating statement of operations for the insurance policies carried most recent fiscal year, interim period (if available) and 12-month period ending on the last day of such interim period, in each case adjusted to give effect to the Merger, the other transactions related thereto and any other transactions that would be required to be given pro forma effect by Regulation S-X promulgated under the Securities Act of 1933 and such other adjustments as shall be agreed between Holdings and the Administrative Agent (the “Pro Forma Financial Statements”), and (c) a financial model of Borrowers to include projected financial performance (including balance sheet and availability projections and debt tranches) on a monthly basis for the first Loan Year and on an annual basis thereafter, which financial model reflects the Borrowers, all in compliance with ’ ability to perform their obligations under the Loan Documents, together with endorsements naming Agent and meet their debts as lender loss payee or additional insuredthey become due, after the Closing Date.
(j) Agents shall have received all documentation and information about the Equity Investors as appropriateis requested in writing by the Agents under applicable “know your customer” and anti-money laundering rules and regulations, each including without limitation, the PATRIOT Act, in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial the Agents and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)Lenders.
(k) Either (A) the Merger shall have been consummated or (B) Holdings shall have acquired more than 50% of the issued and outstanding capital stock of SEI, in either case concurrently with or prior to the initial borrowing under the Revolving Credit Facility in accordance with the terms of the Merger Agreement and the related tender documents, and the Merger Agreement and the other material agreements consisting of the tender documents and the organizational documents of Merger SPC shall not have been altered, amended or otherwise changed or supplemented or any condition therein waived without the prior written consent of Administrative Agent (other than alterations, amendments, changes, supplements or waivers that are not materially adverse to the interests of Lenders).
(l) The capital structure of the Holdings, SEI and the Borrowers, after giving effect to the Merger and Related Transactions, and the flow of funds with respect to the Merger and Related Transactions, shall all be satisfactory to Agents and Lenders.
(m) Agents shall be satisfied that, as of the Closing Date, the sum of (A) Aggregate Availability under the Revolving Credit Facility plus (B) Closing Date Pledged Cash, shall be not less than $60,000,000 after giving effect to the Merger and Related Transactions (including all Merger Transaction Costs) and all extensions of credit under the Revolving Credit Facility on such date.
(n) Borrowers within such Borrower Group shall have paid all fees and expenses to be paid to Agent Agents and Lenders on the Closing Date.
(lo) The Intercreditor Agreement Agents shall have been duly executed received copies of the property and delivered casualty insurance policies of Borrowers with respect to the Collateral of such Borrower Group, or certificates of insurance with respect to such policies in form acceptable to Administrative Agent, and loss payable endorsements on Administrative Agent’s standard form (or other form acceptable to Agents) of loss payee endorsement naming the Applicable Agent as sole lender’s loss payee with respect to each such policy and copies of such Borrowers’ liability insurance policies, including product liability policies, together with endorsements naming the Applicable Agent as an additional insured, all as required by the Loan Documents.
(p) With respect to the issuance of any Letter of Credit on the Closing Date, each of the signatories thereto, and be in form and substance satisfactory LC Conditions is satisfied with respect to each Lender in their sole discretionsuch Borrower Group.
(mq) Agent shall have received a listing Each of the conditions specified in Section 6.2 is satisfied with respect to such Borrower Group on the Closing Date (other than Section 6.2(f) with respect to the Borrowers’ Account Debtors, including and Section 6.2(g) and (h) with respect to the name and address of each such Account DebtorU.S. Borrowers).
(nr) Agent Agents shall have received a Borrowing Base Certificate prepared as received, and found acceptable, all Related Real Estate Documents with respect to the Mortgaged Real Estate. Notwithstanding the satisfaction of each of the Closing Date. Upon giving effect foregoing conditions precedent with respect to any Borrower Group, no Credit Party shall have any obligation to make Revolver Loans or otherwise extend credit to or for the benefit of any Borrower within such Borrower Group unless all of the foregoing conditions precedent are also satisfied with respect to the initial funding Borrower Group consisting of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000U.S. Borrowers.
Appears in 1 contract
Samples: Loan Agreement (Superior Essex Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Revolver Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers under the Revolver Commitment hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof, including (i) a duly executed Pledge Agreement, along with certificates representing the Pledged Collateral referred to therein accompanied by undated stock powers executed in blank, together with any other documents necessary to create and perfect the security in Equity Interests of the Obligors to the extent required under Section 7.1, (ii) a duly executed Trademark Security Agreement, together with evidence that all actions that Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created thereunder has been taken, including without limitation, filing and recording of such security interests with the appropriate Governmental Authorities, and (iii) a duly executed Release and Termination Agreement.
(b) Agent shall have received the duly executed Parent Guaranty.
(c) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(cd) Agent shall have received certificates and instruments evidencing the Pledged Collateral existing on the Closing Date accompanied by an undated instrument of assignment executed in blank by the applicable Obligor.
(e) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(df) Agent shall have received certificatesa certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, as of the Closing Date (i) such Borrower is the Obligors taken as a whole on a consolidated basis are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower each Obligor has complied with all agreements and conditions to be satisfied by it under the Loan DocumentsDocuments as of the Closing Date (unless waived by Agent).
(eg) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fh) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPLaw Firm, P.C., L.L.O., as well as any local counsel to Borrowers and Parent in Utah and MichiganObligors, each in form and substance reasonably satisfactory to Agent.
(gi) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(hj) Agent shall have received true and certified copies of insurance policies or certificates of insurance insurance, as Agent shall request, for each of the insurance policies required to be carried by Borrowers, all Obligors in compliance accordance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(k) To the extent not previously received, Agent shall have received (i) the audited consolidated balance sheet of Parent and Subsidiaries for the Fiscal Year ended December 31, 2007, and the related consolidated statements of income or operations, shareholder’s equity and cash flows for such Fiscal Year, including the notes thereto, (ii) unaudited consolidated financial statements of Parent and Subsidiaries dated as of the last day of the most recently completed month-end for which financial statements are available and the related consolidated financial statements of income or operations, shareholders’ equity and cash flows for the month ending on such date, prepared by management of the Obligors consistent with past practices, and (iii) projections of Parent and the other Obligors, evidencing Borrowers’ ability to comply with the financial covenant set forth in Section 10.3.
(l) No Material Adverse Effect shall have occurred.
(m) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(jn) Agent shall have receivedreceived an appraisal of all Eligible Revenue Equipment, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(ko) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(np) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateSeptember 22, 2008. Upon After giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00020,000,000 on the Closing Date (after giving effect to any Availability block and all other reserves).
(q) Agent shall be satisfied with the capital structure and Debt of Borrowers and the other Obligors as of the Closing Date and Agent shall have received satisfactory evidence that Borrowers are adequately capitalized, that the fair saleable value of Borrowers’ assets will exceed its liabilities on the Closing Date, and that Borrowers will have sufficient working capital to pay its Debts as they become due.
(r) No action, suit, investigation, litigation or proceeding shall be pending or threatened in writing in any court or before any arbitrator or governmental instrumentality that in Agent’s reasonable business judgment could reasonably be expected to have a Material Adverse Effect.
(s) To the extent not already provided to Agent, Borrowers shall have provided all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the U.S.A. Patriot Act, to the extent such information is requested at least ten (10) Business Days prior to the Closing Date.
(t) Agent shall not have become aware of any material information or other matter not previously known to Agent that in its good faith, reasonable determination is inconsistent in a material and adverse manner with any previous due diligence, information or matter known to Agent, which material information or other matter not previously known to Agent is reasonably likely to have a Material Adverse Effect.
(u) Agent shall have received and delivered to the title company for recording in the applicable recording jurisdiction Mortgages for all Eligible Real Estate.
(v) Agent shall have received the Real Estate Related Documents for all Eligible Real Estate.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders Lender shall not be required to fund any requested Loan, issue any Letter of Credit, Credit or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent Lender by each of the signatories thereto, and each Obligor Borrowers shall be in compliance with all terms thereof.
(b) Agent Lender shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent Lender that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent (i) Lender shall have received the definitive Share Purchase Agreement relative to the Target Acquisition (including all schedules thereto) and all other documentation associated therewith will be in form and substance reasonably satisfactory to Lender, and (ii) the Target Acquisition shall have been consummated in accordance with the terms and conditions of the definitive Share Purchase Agreement and other agreements relating thereto and no material terms or conditions of which shall have been waived without the prior consent of Lender.
(d) Lender shall have received duly executed agreements establishing each the Dominion Account and related lockbox, lockbox in form and substance, and with financial institutions, substance satisfactory to AgentLender.
(de) Agent Lender shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer senior officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solventsolvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects (except to the extent the representations and warranties relate to an earlier date, in which case such representation or warranty shall be true and correct on and as of such earlier date); and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent Lender shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true Borrowers’ organizational documents and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of all resolutions authorizing the execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all any other resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent Lender shall have received copies of the charter documents of each ObligorBorrowers, certified by the Secretary of State or other appropriate official of such Obligor’s Borrowers’ jurisdiction of organization. Agent Lender shall have received good standing certificates for each ObligorBorrowers, issued by the Secretary of State or other appropriate official of such Obligor’s Borrowers’ jurisdiction of organization and each jurisdiction where such Obligor’s Borrowers’ conduct of business or ownership of Property necessitates qualification, as well as any necessary third party or governmental consents and/or Lien Waivers (or with respect to Inventory, Agent shall have established a reserve at least equal to three (3) months’ rent and other charges that could be payable to any Person).
(h) Agent Lender shall have received copies of policies or certificates of insurance and insurance endorsements for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent Lender shall have completed its business, financial and legal due diligence of ObligorsBorrowers, including a roll-forward of its previous field examination, with results satisfactory to AgentLender. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor Borrowers or in the quality, quantity or value of any Collateral shall have occurred since September 30December 31, 20082016.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders Lender on the Closing Date.
(lk) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate Report prepared as of the Closing Date. February 16, 2017.
(l) Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith herewith, and taking into account all fees and expenses incurred by Borrowers in connection with the Target Acquisition as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,0002,000,000.
(m) Lender shall have received the certificates representing the Equity Interests Pledged pursuant to Section 7.1 hereof, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the xxxxxxx thereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Wireless Telecom Group Inc)
Conditions Precedent to Initial Loans. In addition The obligation of the Lender to make the Loan(s) constituting the initial borrowing is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, condition precedent that the Lender must have received on or otherwise extend credit to Borrowers hereunder, until before the date (“Closing Date”of such Loan(s) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesfollowing, in form and substance satisfactory to itthe Lender and its counsel, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to or that the initial Loans and transactions hereunder, Lender shall otherwise be satisfied that the following conditions have been met:
(ia) such Borrower is Solvent; this Agreement duly executed by the Borrower;
(ii) no Default or Event of Default exists; (iiib) the representations and warranties set forth in Section 9 are true and correct; and Revolving Credit Promissory Note duly executed by the Borrower;
(ivc) the Authorization Letter duly executed by the Borrower;
(d) a favorable opinion of counsel for the Borrower, dated the Closing Date, as to such Borrower has complied with all agreements and conditions to be satisfied by it under matters as the Loan Documents.Lender may reasonably request;
(e) Agent shall have received a certificate of the Secretary or Assistant Secretary of the Borrower, dated the Closing Date, attesting to all company action taken by the Borrower, including resolutions of its governing board authorizing the execution, delivery and performance of the Facility Documents to which it is a duly authorized officer party and each other document to be delivered pursuant to this Agreement and certifying true copies of each Obligorthe articles of incorporation, by-laws and other organizational documents of the Borrower;
(f) a certificate of the Secretary or Assistant Secretary of the Borrower, dated the Closing Date, certifying (i) that attached copies of such Obligor’s Organic Documents are the names and true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery signatures of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to officers of the title, name and signature of each Person Borrower authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until Facility Documents to which it is otherwise notified a party and the other documents to be delivered by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.Borrower under this Agreement;
(g) Agent shall have received copies evidence of insurance as required by the charter documents Facility Documents;
(h) a certificate of each Obligor, certified by good standing for the Borrower from the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for in which the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory Borrower is qualified to Agent.do business; and
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in payment by the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior Borrower to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all expenses and fees and expenses (including reasonable attorney’s fees) incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.by the Lender;
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Effective Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Borrowers and their Subsidiaries taken as a whole are Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower each Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion addressed to Agent and Lenders of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPBond Xxxxxxxxx & Xxxx, PLLC counsel to the Obligors and their Subsidiaries, as well as any other local counsel to Borrowers and Parent Obligors or Agent, in Utah and Michiganeach case, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or financial condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30March 31, 20082020.
(j) Agent Each Borrower shall have receivedprovided, each in form and substance satisfactory to AgentAgent and each Lender, interim financial statements not more than 30 days prior all documentation and other information as Agent or any Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to the Closing Date for: (i) Parent Agent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)Lenders in relation to such Borrower.
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Effective Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of February 28, 2021.
(m) Borrowers and their Subsidiaries shall have delivered to Agent a Mortgagee Consent or Lien Waiver, as applicable, as requested by the Closing Agent with respect to any Real Estate and/or any assets of the Obligors that are in the possession of a landlord or warehouseman.
(n) Borrowers and their Subsidiaries shall have delivered to Agent an Equipment Access Agreement with respect to any leased Labeling Equipment located at a Labeling Facility other than with respect to Labeling Equipment leased from Bank of America or any of its Affiliates.
(o) Borrowers and their Subsidiaries shall have paid to Agent, as agent for each Lender, an upfront fee equal to 0.19% of each Commitment, which will be deemed fully earned as of the Effective Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition At the time of the making of the initial Loans hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to the conditions set forth initial Loans (including, without limitation, Borrower's obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any Closing Fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in Section 6.2full, Lenders and the Lender shall not be required have received the following, in form and substance reasonably satisfactory in all respects to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfiedLender:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been The duly executed and delivered to Agent by each counterparts of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.this Agreement;
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in The duly executed Notes evidencing the Collateral, as well as UCC Revolving Loan Commitment and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.Term Loan Commitment;
(c) Agent shall have received The duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.Guaranty Agreement;
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.The duly executed Contribution Agreement;
(e) Agent shall have received a certificate Duly executed Certificate of a duly authorized officer Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(f) Duly executed Certificates of the Secretary or Assistant Secretary of each Obligorof 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;
(g) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) that attached copies the name, title and true signature of each officer of such Obligor’s Organic Documents are true and completeentities executing the Credit Documents, and in full force and effect, without amendment except as shown; (ii) that an attached copy the bylaws or comparable governing documents of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.entities;
(fh) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received Certified copies of the charter documents certificate or articles of incorporation of each Obligor, Credit Party certified by the Secretary of State or other appropriate official the Secretary or Assistant Secretary of such Obligor’s jurisdiction Credit Party, together with certificates of organization. Agent shall have received good standing certificates for each Obligoror existence, issued by as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(i) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(j) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(k) The duly executed copy of the Contribution Agreement by the Borrower and the Guarantors, in the form reasonably acceptable to the Lender;
(l) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), in any single case greater than $100,000;
(m) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(n) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(o) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender 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;
(p) A summary, set forth in format and detail reasonably acceptable to the Lender, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(q) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender and each of the Lender;
(r) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal year ended on December 31, 1999; and
(s) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the nine (9) month period ending September 30, 2000. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(t) The Loans to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.governmental authority;
(hu) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, All corporate proceedings and all other legal matters in compliance connection with the Loan Documentsauthorization, together with endorsements naming Agent as lender loss payee or additional insuredlegality, as appropriate, each validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance satisfactory to Agent.the Lender; and
(iv) Agent shall have completed its business, financial The status of all pending and legal due diligence of Obligorsthreatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) description of any Obligor or in damages sought and the qualityclaims constituting the basis therefor, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each been reported in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior writing to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP GroupLender, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000satisfied with such status.
Appears in 1 contract
Samples: Revolving and Term Loan Agreement (Brown & Brown Inc)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required The Lender’s obligation to fund any requested Loanthe initial Loans, and to issue any or cause to be issued the initial Letter of Credit, is subject to the satisfaction or otherwise extend credit to Borrowers hereunder, until waiver on or before the date (“Closing Date”) that each hereof of the following conditions has been satisfiedprecedent:
(a) Notes Lender shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by received each of the signatories theretoagreements, opinions, reports, approvals, consents, certificates and other documents set forth on the closing delivery list attached hereto as Schedule 14.01-A in each Obligor shall be case properly executed by the appropriate party and in compliance with all terms thereof.form and substance reasonably satisfactory to the Lender;
(b) Agent Since March 31, 2011, no event shall have received acknowledgments of all filings occurred which has had or recordations necessary could reasonably be expected to perfect its Liens in the Collateralhave a Material Adverse Effect, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.determined by Lender in its sole discretion;
(c) Agent Lender shall have received duly executed agreements establishing each Dominion Account payment in full of all fees and related lockboxexpenses payable to it by Borrowers or any other Person in connection herewith, in form and substance, and with financial institutions, satisfactory to Agent.on or before disbursement of the initial Loans hereunder;
(d) Agent As shown on Schedule 14.01-B, Lender shall have determined that immediately after giving effect to (i) the making of the initial Loans, including without limitation the Term Loans and the Revolving Loans, if any, requested to be made on the date hereof, (ii) the issuance of the initial Letter of Credit, if any, requested to be made on such date, (iii) the payment of all fees due upon such date and (iv) the payment or reimbursement by Borrowers of Lender for all closing costs and expenses incurred in connection with the transactions contemplated hereby, Borrowers have aggregate Excess Availability as of the date of this Agreement of not less than $1,000,000;
(e) Lender shall have received certificates, an appraisal of all Equipment and machinery with values for both a net orderly liquidation valuation and net forced liquidation valuation in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect Lender and by an appraiser acceptable to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth Lender in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.Lender's sole discretion;
(f) Agent Lender shall have received an appraisal of the Real Property on a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each fair market valuation in form and substance satisfactory to Agent.Lender and by an appraiser acceptable to Lender in Lender's sole discretion; and
(g) Agent The Loan Parties shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of Lender all such other documents, instruments and agreements which Lender determines are reasonably necessary to consummate the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretiontransactions contemplated hereby.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.
Appears in 1 contract
Samples: Credit and Security Agreement (Mendocino Brewing Co Inc)
Conditions Precedent to Initial Loans. In addition The obligation of each Lender to make the initial extensions of credit provided for hereunder is subject to the conditions set forth in Section 6.2fulfillment, Lenders shall not be required to fund any requested Loanthe reasonable satisfaction of Agent and each Lender, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):
(a) Notes The Closing Date shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. occur on or before January 31, 2017.
(b) Each other Loan Document (including, without limitation, the Related Real Estate Documents for all Real Estate subject to a Mortgage) shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance in all material respects with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesa certificate, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of Borrower Agent certifying that the Project Vine Acquisition shall be consummated pursuant to the Project Vine Purchase Agreement substantially concurrently with the initial funding of the Loans on the Closing Date (without any amendment, modification or waiver thereof or any consent thereunder which is materially adverse to the interests of the Joint Lead Arrangers without the consent of the Joint Lead Arrangers, such consent not to be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any decrease in the consideration for the Project Vine Acquisition shall not be deemed to be materially adverse to the Joint Lead Arrangers so long as such purchase price decrease is applied to reduce the amount of the Commitments hereunder, the commitments under the Second Lien Loan Documents and the Equity Contribution on a pro rata basis, (ii) any increase in the consideration for the Project Vine Acquisition shall be deemed not to be materially adverse to the interests of the Joint Lead Arrangers so long as such purchase price increase is funded with an increase in the Equity Contribution, (iii) any amendment or other modification (including a waiver or consent related thereto) to the definition of Company Material Adverse Effect without the prior written consent of the Lenders (such consent not to be unreasonably withheld, delayed or conditioned) shall be deemed to be materially adverse to the interests of the Joint Lead Arrangers, (iv) any working capital adjustment shall not be deemed an increase or decrease in the consideration for the Project Vine Acquisition, and (v) any assignment of the rights and obligations of Ultimate Holdco under the Project Vine Purchase Agreement to the Borrower Agent shall not be deemed to be materially adverse to the Joint Lead Arrangers)).
(d) Lenders shall have received the Historic Seller Financial Statements pursuant to Section 9.1.7(a).
(e) Lenders shall have received a pro forma consolidated balance sheet and related pro forma consolidated statements of income of the Borrowers as of and for the twelve-month period ending on the last day of the most recently completed four fiscal quarter period for which financial statements have been delivered pursuant to paragraph (d) above, in each Borrower certifying thatcase, prepared after giving effect to the initial Loans Transactions (but without giving effect to any step- up in basis of inventory or other assets) as if the Transactions had occurred as of such period and transactions hereunderany other adjustments as agreed by the Equity Sponsor and the Lenders.
(f) The Joint Lead Arrangers shall have received from the Borrowers a detailed business plan or projections of the Borrowers and their Subsidiaries for the Fiscal Years 2017 through 2021 and for the four Fiscal Quarters beginning with the first quarter of 2017.
(g) Subject to the terms and conditions of the access letter(s) from KPMG, the Joint Lead Arrangers shall have received from the Borrowers the final quality of earnings reports with respect to the Targets and the Borrowers prepared by KPMG in connection with the Transactions.
(ih) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) The Specified Representations shall be true and correct in all material respects and the representations and warranties set forth in Section 9 are the Project Vine Purchase Agreement shall be true and correctcorrect in all material respects; and (iv) provided that in each case any such Borrower has complied with representation or warranty qualified by materiality or “Material Adverse Effect” or similar language shall be accurate in all agreements and conditions to be satisfied by it under the Loan Documentsrespects.
(ei) The Joint Lead Arrangers shall have received from the Borrowers and the Guarantors reasonably satisfactory legal opinions, perfection certificates, corporate documents and officers’ and public officials’ certifications; a customary notice of borrowing; organizational documents; customary evidence of authorization to enter into the Loan Documents in respect of the Obligations; and good standing certificates in jurisdictions of formation/organization, in each case of the Obligors.
(j) The Agent shall have received a solvency certificate from the chief financial officer or equivalent officer of the Borrowers certifying that the Borrowers and their Subsidiaries, on a consolidated basis after giving effect to the Transactions, are Solvent, the form of which is attached as Exhibit 6.10).
(k) With respect to the Obligations, all actions necessary to establish that the Agent will have a perfected, first priority Lien (subject to Permitted Liens) on and security interest in all Collateral of Borrowers and the Guarantors under the Loan Documents shall have been taken, including without limitation, Agent’s receipt of a duly authorized officer payoff letter from each of each ObligorSilicon Valley Bank, certifying Xxxxx Fargo Bank, N.A. and Metropolitan Life Insurance Co. that provides that upon payment of the outstanding Debt owing to such Person by the Obligors, such Person shall terminate its lien on the Collateral and Real Estate.
(l) All fees earned, due and payable on the Closing Date pursuant to this Agreement and the Fee Letter and out-of-pocket expenses earned, due and payable on the Closing Date pursuant to this Agreement (to the extent invoiced at least three (3) days prior to the Closing Date) shall, upon the closing under the Loan Documents, have been paid (which amounts may be offset against the proceeds of the applicable Loans).
(m) So long as requested at least ten (10) days prior to the Closing Date, the Agent and Lenders shall have received, at least three (3) Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act.
(n) Since the date of the Project Vine Purchase Agreement, no Company Material Adverse Effect shall have occurred.
(o) Prior to, or substantially concurrently with the initial funding contemplated hereunder, there shall have occurred the issuance of not less than an aggregate $370,000,000 of combined equity capital (subject to reduction for any closing working capital or other purchase price adjustments set forth in the Project Vine Purchase Agreement, and including equity capital issued to fund transaction fees and expenses) from (i) that attached copies of such Obligor’s Organic Documents are true Equity Sponsor and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy management “roll-over” equity, on terms and conditions reasonably satisfactory to the Agent, including indirect ownership of resolutions authorizing execution not less than 50% of the Equity Interests of Heritage Target and delivery Vineyard Target, directly or indirectly, by the Equity Sponsor (the “Equity Contribution”).
(p) All consents and approvals of the boards of directors (including, without limitation, the board of directors of each Target), shareholders or members as applicable, and Governmental Authorities reasonably necessary in connection with the Project Vine Acquisition and the Loan Documents is true and complete, the transactions contemplated hereunder and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writingthereunder shall be obtained.
(fq) The Agent shall have received a written opinion the results of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel lien searches with respect to the Borrowers and Parent their respective Subsidiaries in Utah and Michigan, each in form and substance satisfactory to Agentjurisdictions reasonably selected by it.
(gr) The Agent shall have received copies customary insurance certificates (including “earthquake” insurance), naming the Agent, on behalf of the charter documents of each ObligorLenders, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender lenders loss payee or additional insured, as appropriateapplicable, each in form together with the appropriate lenders loss payee endorsements and substance satisfactory to Agentadditional insured endorsements.
(is) Agent There shall have completed its businessbe no pending litigation, financial and legal due diligence of Obligorsbankruptcy or insolvency, including a roll-forward of its previous field examinationinjunction, order or claim with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior respect to the Closing Date for: (i) Parent and its Borrowers or any of their Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Groupthat could reasonably be expected to enjoin or prohibit, or result in substantial damages in respect of, the Eldorado Group, Lenders funding the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders Loans on the Closing Date.
(lt) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon Availability after giving effect to the initial funding of the Loans and issuance of Letters of Credit, and on the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability Closing Date shall be at least equal or exceed $20,000,000. (u) Issuance of not less than $25,000,000 of “Loans” under (and as defined in) the Second Lien Loan Documents on terms and conditions set forth in the Second Lien Loan Documents.
Appears in 1 contract
Samples: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Each of the following conditions has been satisfiedis a condition precedent to Lenders making the initial Loans hereunder:
(a) Notes the Administrative Agent shall have been executed received evidence (including, without limitation, any subordinations, inter-creditor agreements or releases of any other liens or security interests in the Collateral required by Borrowers the Administrative Agent), in form and delivered substance satisfactory to the Administrative Agent, that the Administrative Agent has on behalf of Lenders valid registered Mortgages (registrations to be completed contemporaneously with closing) and valid registered, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to Permitted Liens;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents, including, without limitation, certificates of incumbency of each of the Obligors, records of requisite corporate action and proceedings which the Administrative Agent may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no Material Adverse Change shall have occurred since December 1, 2021;
(d) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, all consents, waivers, bailee letters, acknowledgments and other agreements from third persons which the 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 other Financing Agreements, including, without limitation, full subordination agreements, upon terms satisfactory to the Administrative Agent in its reasonable discretion, in respect of any Subordinated Debt; for greater certainty, the Borrower shall use commercially reasonable efforts to obtain landlord waivers in respect of each of its leased premises that requests issuance is material to the overall operations of a Note. Each an Operating Company, provided that the Borrower shall have no obligation to pay any sum of money to, or otherwise provide consideration or other Loan Document inducement, to any landlord to induce them to enter into any such landlord waiver;
(e) the Administrative 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 the Administrative Agent, and certificates of insurance policies and/or endorsements naming the Administrative Agent as first loss payee and additional insured, as applicable;
(f) the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, such opinion letters of counsel to the Borrower and the Obligors with respect to the Financing Agreements and such other matters as the Administrative Agent may request;
(g) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Administrative Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying thatthe Administrative Agent;
(h) the Excess Availability as determined by the Administrative Agent shall be not less than $25,000,000, after giving effect to the initial Revolving Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default made or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under made hereunder (the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the “Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.”); and
Appears in 1 contract
Samples: Loan Agreement (Andersons, Inc.)
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Each of the following conditions has been satisfiedis a condition precedent to Lender making the initial Loans hereunder:
(a) Notes Lender shall have been received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination of any interest in and to any assets and properties of Borrower duly authorized, executed and delivered, including, but not limited to, UCC termination statements for all UCC financing statements and Lender shall have satisfied itself that it has valid, perfected and first priority security interests in and liens upon the Collateral and any other property which is intended as security for the Obligations, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including, without limitation, records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Borrowers Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender's latest field examination and delivered no change or event shall have occurred which would impair the ability of Borrower or any Obligor to each perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and of such other financial information, projections, budgets, business plans, cash flows as Lender shall reasonably request from time to time, including, but not limited to, current agings of receivables, current perpetual inventory records and/or rollforwards of Accounts and Inventory through the date of closing, together with supporting documentation, including documentation with respect to Inventory in-transit, goods in bonded warehouses or at other third-party locations, that requests issuance will enable Lender to accurately identify and verify the Inventory at or before the date hereof in a manner satisfactory to Lender, the results of which shall be satisfactory to Lender;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, agreements regarding customer rebates and customer discounts, agreements regarding slotting fees, agreements with major customers of Borrower, acknowledgments by mortgagees of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral;
(f) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(g) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Purchase Agreement, the Financing Agreements, the security interests and liens of Lender with respect to the Collateral and such other matters as Lender may request;
(h) Aggregate Excess Availability as determined by Lender as of the date hereof, shall be not less than Three Million Dollars ($3,000,000) after giving effect to the initial Loans made or to be made hereunder, the initial Loans (as defined under the IPD Loan Agreement) and the payment of all fees and expenses payable upon the consummation of the initial transactions contemplated by this Agreement and the IPD Loan Agreement;
(i) Lender shall have received, in form and substance satisfactory to Lender and its counsel, the assignment of all of Borrower's rights in registered patents, trademarks, service marks and copyrights, as Collateral hereunder, on Lender's standard forms of Collateral Assignments;
(j) Lender shall have received, in form and substance satisfactory to Lender, an executed copy of a Note. Each Blocked Account agreement, pursuant to Section 6.3(a) hereof, among Lender, Borrower and Fleet National Bank, N.A.;
(k) Lender shall have received the IPD Guaranty and the UCS Guaranty, each in form and substance satisfactory to Lender;
(l) the other Loan Document Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificatesLender, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.Lender;
(em) Agent Lender shall have received a certificate of a duly authorized officer of each Obligorreceived, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.Lender, evidence that (i) the Purchase Agreements have been duly executed and delivered by and to the appropriate parties thereto, (ii) the transactions contemplated under the terms of the Purchase Agreements have been consummated prior to or contemporaneously with the execution of this Agreement and (iii) provisions have been incorporated into the Purchase Agreements which provide that any sums refunded or otherwise returned by Seller to Borrower or any Affiliate, whether from an escrow agent or otherwise, shall be wired directly to Lender;
(gn) Agent Lender shall have received received, copies of all Slotting Contracts and performed a review thereof, the charter documents results of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent which shall be satisfactory to Lender;
(o) Lender shall have received good standing certificates for each Obligorreceived, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent Lender, the Subordination Agreement executed by Seller and any other holders of a security interest in Borrower's assets shall have completed its businessterminated such security interests or have executed intercreditor and subordination agreements for the benefit of Lender, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).Lender;
(kp) Borrowers Lender shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories theretoreceived, and be in form and substance satisfactory to each Lender, a consolidated and consolidating pro-forma balance sheet of Borrower reflecting the initial transactions contemplated hereunder, including, but not limited to, (i) the consummation of the acquisition of the Purchased Stock by DAC from Seller and the other transactions contemplated by the Purchase Agreements and (ii) the Loans provided by Lender to Borrower on the date hereof and the use of the proceeds of the initial Loans as provided herein, accompanied by a certificate, dated of even date herewith, of the chief financial officer of Borrower, stating that such pro-forma balance sheet represents the reasonable, good faith opinion of such officer as to the subject matter thereof as of the date of such certificate;
(q) Lender shall have received, in form and substance satisfactory to Lender, evidence that Borrower and IPD have collectively received net cash proceeds from cash equity capital contributions or loans (provided that such debt is subordinated to the interests of Lender in their sole discretion.a manner satisfactory to Lender) to Borrower and/or IPD of not less than Seven Million Dollars ($7,000,000), exclusive of any contributions from RDA Financing, and such proceeds have been applied to part of the cash portion of the purchase price of the Purchased Stock payable pursuant to the Purchase Agreements;
(mr) Agent Lender shall have received, in form and substance satisfactory to Lender, the agreement of Seller consenting to the collateral assignment by Borrower or any Obligor to Lender of all of Borrower's and such Obligor's rights and remedies and claims for damages and other relief under the Purchase Agreements and granting Lender such other rights as Lender may require, duly authorized, executed and delivered by Seller;
(s) the period for review of the transactions contemplated by the Purchase Agreements shall have expired without the taking of any actions adverse to such transactions by the United States Department of Justice and each representation and warranty contained in Section 8.13(b) hereof shall be true and correct;
(t) Lender shall have received a listing copy of the Borrowers’ Account DebtorsLease for the facility located at 674 Via de la Valle in Solana Beach, including the name and address of each such Account Debtor.California between UCS as Lessex xxx Xxxxxxxxx Xxxxxxxxxx, LLC as Lessor;
(nu) Agent Lender shall have received, the IPD Loan Agreement, in form and substance satisfactory to Lender;
(v) each condition precedent contained in the IPD Loan Agreement shall have been fulfilled to Lender's satisfaction;
(w) Lender shall have received a Borrowing Base Certificate prepared an opinion letter from Houlihan Lokey Howard & Zukin with respect to Borrower's solvency anx xxxx xtxxx xxxxxxx as Xxxxxr may request, in form and substance satisfactory to Lender in its sole discretion;
(x) Lender shall have received from Borrower copies of the Closing Date. Upon giving effect all financial statements, balance sheets, cash flow projections or other such information of Borrower or its Affiliates provided to Houlihan Lokey Howard & Zukin for purposes of or in connection with xxxx xxxnxxx xxxxxxxx wixx x letter from Borrower's Chief Financial Officer, in form and substance satisfactory to Lender, representing and warranting as to the initial funding truth and accuracy of Loans and issuance of Letters of Creditall information contained therein;
(y) each IPD Affiliate, except for UCS, shall have agreed to merge into IPD and the payment executed merger agreement(s) therefor delivered to Lender;
(z) Lender shall have received, in form and substance satisfactory to Lender, a certificate as to the solvency of Borrower executed by Borrowers Borrower's Chief Financial Officer; and
(aa) Lender shall have received copies of all fees and expenses incurred licensing agreements, along with any related documents or agreements, pursuant to which Borrower or any of its Affiliates licenses software for use in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000conducting its business.
Appears in 1 contract
Samples: Loan and Security Agreement (Source Interlink Companies Inc)
Conditions Precedent to Initial Loans. In addition The obligation of each Lender to amend and restate the Original Loan Agreement and make its extension of credit to be made hereunder on the Closing Date is subject to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, satisfaction (or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”waiver by Agent) that each of the following conditions has been satisfiedprecedent:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockboxthe Related Real Estate Documents for all Eligible Real Estate subject to a Mortgage.
(d) Agent shall have received, in form and substance, and with financial institutions, substance satisfactory to Agentit, interim financial statements for Xxxxxxxxx as of March 31, 2024.
(de) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and the transactions hereunder, (i) such Borrower Obligor is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respects; and (iv) such Borrower Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(ef) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person those Person(s) that are authorized to sign to, and have signed, the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(fg) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPXxxxxx Xxxxxx Xxxxxx & Xxxxxx XXX, as well as any local counsel to Borrowers and Parent in Utah and MichiganObligors or Agent, each in form and substance reasonably satisfactory to Agent.
(gh) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationfailure to be so qualified would reasonably be expected to result in a Material Adverse Effect.
(hi) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by BorrowersObligors, all in compliance with the Loan Documents.
(j) Each Obligor shall have provided, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
Agent and each Lender, a duly executed W-9 (i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwisesuch other applicable tax form) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent shall have received, each in form and substance satisfactory to Borrower Agent, interim financial statements not more than 30 and all documentation and other information as Agent or any Lender reasonably requests at least 5 days prior to the Closing Date for: (i) Parent in connection with applicable “know your customer” and its Subsidiaries on anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Obligor qualifies as a consolidated basis; “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Agent and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group)Lenders in relation to such Obligor.
(k) Since December 31, 2023, no Material Adverse Effect shall have occurred.
(l) Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, if any, on the Closing Date, and the payment by the Borrowers of all fees and expenses incurred in connection herewith and therewith, Availability shall be at least $30,000,000.
(m) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
Date (l) The Intercreditor Agreement shall have been duly executed including all fees set forth in the Fee Letter and delivered all fees and expenses of legal counsel to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account DebtorAgent).
(n) Agent shall have received evidence satisfactory to it that Borrowers have received all governmental, shareholder and third party consents and approvals as may be appropriate in connection with this credit facility and the transactions contemplated thereby.
(o) Substantially concurrently with the borrowing under this Agreement, the Borrowers shall have repaid and terminated all outstanding debt under that certain Loan and Security Agreement dated as of March 15, 2021 among certain of the Obligors, the lenders party thereto and TCW Asset Management Company LLC, as administrative agent (the “Closing Date Refinancing”).
(p) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of CreditMarch 31, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,0002024.
Appears in 1 contract
Samples: Abl Loan and Security Agreement (Rocky Brands, Inc.)
Conditions Precedent to Initial Loans. In addition to and the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each Credit Accommodations. Each of the following conditions has been satisfiedis a condition precedent to Lender making the initial Loans and the initial Letter of Credit Accommodations hereunder:
(a) Notes Lender shall have been executed received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by Borrowers the existing lender or lenders to Borrower of their respective financing arrangements with Borrower and delivered the termination and release by it or them, as the case may be, of any interest in and to each Lender that requests issuance any assets and properties of a Note. Each other Loan Document shall have been Borrower, duly authorized, executed and delivered to Agent by it or each of them, including, but not limited to, UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and Borrower, as debtor in form acceptable for recording or filing in the signatories theretoappropriate government office, and each Obligor Lender shall be have satisfied itself that it has valid, perfected and first priority security interests in compliance with all terms thereof.and liens upon the Collateral and any other property which is intended as security for the Obligations, subject only to the security interests and liens permitted herein or in the other Financing Agreements;
(b) Agent all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received acknowledgments all information and copies of all filings documents, including, without limitation, records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or recordations its counsel to be certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrower to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower, the results of which shall be satisfactory to Lender; and Lender shall have received current perpetual Inventory records and/or rollforwards of Inventory through the date hereof, together with all supporting documentation and such other documents and information as Lender shall request in its reasonable credit judgment to enable Lender to accurately identify and verify the Eligible Inventory at or before the date hereof in a manner satisfactory to Lender, including, but not limited to, Inventory in transit;
(e) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its Liens 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, but subject to Borrower's best efforts to obtain such waivers for Borrower's retail locations, acknowledgements by lessors of Lender's security interests in the Collateral, as well as UCC waivers by such persons of any security interests, liens or other claims by such persons to the Collateral and Lien searches agreements by such persons permitting Lender access to, and other evidence satisfactory the right to Agent that such Liens are remain on, the only Liens upon premises to exercise its rights and remedies and otherwise deal with the Collateral; provided, except Permitted Lienshowever, that the foregoing shall not limit the right of Lender to establish an Availability Reserve to cover two (2) months gross rent, in a manner consistent with the Availability Reserve established to cover rent as defined in Section 1.5 hereof, in the event Lender does not receive an acceptable waiver from the owner of any location at which the Borrower maintains Inventory.
(cf) Agent all Credit Card Issuers and Credit Card Processors shall have been irrevocably directed by the parties to Credit Card Agreements, and such Credit Card Companies and Credit Card Processors shall agree, that all proceeds of Credit Card Receivables shall be remitted to the Blocked Account;
(g) Lender shall have received duly executed agreements establishing each Dominion Account evidence of insurance and related lockboxloss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(h) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(i) the Excess Availability as determined by Lender as of the date hereof, shall be not less than Ten Million Dollars ($10,000,000) after giving effect to the initial Loans made or to be made hereunder and the payment of all fees and expenses payable upon the consummation of the initial transactions contemplated by this Agreement;
(j) Lender shall have received the negative pledge by Borrower of the issued and outstanding capital stock of GCRC, as additional collateral security for the Obligations, through the deposit by Borrower of such stock into an escrow arrangement for the sole benefit of Lender, in form and substance, and with financial institutionsan escrow holder, satisfactory acceptable to Agent.Lender and its counsel;
(dk) Agent Lender shall have received certificatesreceived, in form and substance satisfactory to itLender and its counsel, an irrevocable payment instruction from a knowledgeable Senior Officer of each Borrower certifying thatand GCRC to Bankers Trust Company, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it as Trustee under the Loan Documents.Pooling Agreement, directing that all amounts otherwise payable to Borrower or GCRC under the Pooling Agreement shall be paid to Lender, and such payment instruction shall have been acknowledged and agreed to by Bankers Trust Company;
(el) Agent Lender shall have received a certificate of a duly authorized officer of each Obligorreceived, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each in form and substance satisfactory to Agent.Lender and its counsel, the assignment of all of Borrower's rights in registered patents, trademarks, service marks and copyrights, as Collateral hereunder, on Lender's standard forms of Collateral Assignments;
(gm) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the business, operations, Properties, prospects or condition (financial or otherwise) of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since September 30, 2008.
(j) Agent Lender shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent Lender and its Subsidiaries on a consolidated basis; counsel, copies of all agreements in connection with the Securitization Facility, including the Receivables Purchase Agreement and the Pooling Agreement;
(iin) Parent Lender shall have received, in form and substance satisfactory to Lender and its Subsidiaries counsel, copies of all of Borrower's agreements with financial institutions regarding the collection of receipts from purchases made by customers on a consolidating basis credit or charge cards other than Borrower's private label credit card;
(but only on a group by group basis for o) each of the HRI Group, depository banks used by Borrower's retail store locations for the Eldorado Group, deposit of receipts from the SCP Group, sale of merchandise or for the deposit of other proceeds of Collateral and other property which is security for the Tapco Group).Obligations shall have been notified of Lender's security interested therein and shall have been irrevocably authorized and directed to send all funds on deposit with such banks only to the Blocked Account or as Lender otherwise directs;
(kp) Borrowers Lender shall have paid all fees received, in form and expenses substance satisfactory to be paid Lender, an executed copy of a Blocked Account Agreement, pursuant to Agent Section 6.3(ii) hereof, among Lender, Borrower and Lenders on the Closing Date.Wells Fargo Bank, N.A.; and
(lq) The Intercreditor Agreement the othxx Xxnancing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent by each of the signatories theretoLender, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(n) Agent shall have received a Borrowing Base Certificate prepared as of the Closing Date. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,000.Lender;
Appears in 1 contract
Conditions Precedent to Initial Loans. In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of made or provisions shall have been made for all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correctcorrect in all material respect (without duplication of any materiality qualifier contained therein); and (iv) such Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLPXxxxx Day, as well as any local counsel to Borrowers and Parent in Utah and MichiganBorrowers, each in form and substance satisfactory to Agent.
(g) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualificationqualification and where failure to be so qualified would reasonably be expected to have a Material Adverse Effect.
(h) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrowers, together with lender’s loss payable endorsement with respect to property insurance policies related to the Collateral and additional insured endorsements with respect to liability insurance policies, all in compliance with the Loan Documents, together with endorsements naming Agent as lender loss payee or additional insured, as appropriate, each in form and substance satisfactory to Agent.
(i) Agent shall have completed its business, financial and legal due diligence of ObligorsObligors (including evidence that Borrowers have received all governmental and third party consents and approvals necessary to consummate the transactions contemplated hereunder), including an appraisal of Borrowers’ Inventory, a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the businessfinancial condition of the Obligors (taken as a whole) since December 31, operations, Properties, prospects or condition (financial or otherwise) of any Obligor 2009 or in the quality, quantity or value of any the Collateral (taken as a whole) shall have occurred since September 30May 25, 20082010.
(j) Agent shall have received, each in form and substance satisfactory to Agent, interim financial statements not more than 30 days prior to the Closing Date for: (i) Parent and its Subsidiaries on a consolidated basis; and (ii) Parent and its Subsidiaries on a consolidating basis (but only on a group by group basis for each of the HRI Group, the Eldorado Group, the SCP Group, and the Tapco Group).
(k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(l) The Intercreditor Agreement shall have been duly executed and delivered to Agent by each of the signatories thereto, and be in form and substance satisfactory to each Lender in their sole discretion.
(m) Agent shall have received a listing of the Borrowers’ Account Debtors, including the name and address of each such Account Debtor.
(nk) Agent shall have received a Borrowing Base Certificate prepared as of the Closing DateMay 31, 2010. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $20,000,00025,000,000.
(l) Agent shall have received financial projections of the Borrowers for fiscal years 2010-2012, evidencing Borrowers’ compliance with the financial covenants set forth in Section 10.3 and interim financial statements for the Borrowers as of a date not more than thirty (30) days prior to the Closing Date.
(m) Since December 31, 2009 there has not been a material disruption of or material adverse change in the financial, banking or capital markets (as determined by Agent in its discretion) that would impair, in Agent’s reasonable judgment, a successful syndication of the Revolver Commitments.
(n) All conditions precedent in any other Loan Document shall be satisfied.
Appears in 1 contract
