Conditions Precedent to Initial Loans. The obligation of the Lenders to make the initial Loans is subject to the satisfaction of the following conditions precedent on or prior to the Closing Date: (a) The Agent shall have received the following agreements, documents, certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders and duly executed and delivered by the parties to this Agreement: (i) this Agreement; (ii) the Notes, substantially in the form of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreement; (iii) the Security Documents, including the Security Agreement, and a guaranty of the Obligations under this Agreement from the Loan Parties; (iv) UCC-1 and UCC 1-A and similar Financing Statements; (v) UCC-3 and UCC 3-A and similar Termination Statements; (vi) true and correct copies of all Material Agreements and amendments thereto; (vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party; (viii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions of the Loan Documents; (ix) a Notice or Notices of Borrowing or Conversion as of the Closing Date as to initial Loans; (x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed by the Borrower's Chief Financial Officer; (xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers; (xii) the Articles of Incorporation (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof; (xiii) the Bylaws (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and thereto, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereof; (xiv) a certificate of the Secretary of State of each Loan Party's jurisdiction of incorporation or organization as to the legal existence and status of each Loan Party in such state; (xv) a certificate of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each Loan Party as a foreign corporation or entity in such states; (xvi) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle or other property from Lithia Financial Corporation; (xvii) an opinion addressed to the Lenders from Xxxxxx, Pepper & Shefelman, counsel to the Borrower, in such form and substance acceptable to the Agent in its sole discretion; (xviii) the acknowledgments required by Section 5.20 hereof and the waivers and consents required by Section 5.21 hereof; and (xix) such other documents, instruments, opinions and certificates and completion of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriate. (b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Agent or the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Party. (c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral. (d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent and the Initial Lenders. (e) The Agent and the Initial Lenders shall be satisfied with the Borrower's and the Parent's capital structure. (f) The Borrower shall have delivered the Initial Financial Statement to the Initial Lenders. (g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement shall have been repaid in full. (h) The Borrower shall have paid to the Agent all Fees to be paid under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreement) or agreed to between the Borrower and the Agent on or prior to the Closing Date. (i) The representations and warranties of Section IV are true and correct.
Appears in 1 contract
Samples: Credit Agreement (Lithia Motors Inc)
Conditions Precedent to Initial Loans. The obligation ------------------------------------- of the Lenders Lender Group (or any member thereof) to make the initial Loans Loan is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datethat:
(a) The Agent shall have received on or before the following agreementsday of the initial Borrowing the following, documentseach dated prior to or as of such day, certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders and duly executed and delivered by the parties to this AgreementAgent:
(i) this AgreementThe Notes issued by the Borrower to the order of each Lender;
(ii) the Notes, substantially in the form Copies of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreement;
(iii) the Security Documents, including the Security Agreement, and a guaranty of the Obligations under this Agreement from the Loan Parties;
(iv) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions of the Loan Documents;
(ix) a Notice or Notices of Borrowing or Conversion as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed by the Borrower's Chief Financial Officer;
(xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(xii) the Articles of Incorporation (Incorporation, partnership agreement or other organizational document of the equivalent document depending on the form Borrower, certified as of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of a recent date by the Secretary of State of its jurisdiction state of formation or incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiiiii) Copies of the Bylaws (or Bylaws, if any, of the equivalent document depending on the form of entity) of each Loan Party and all amendments and theretoBorrower, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereofthe Borrower;
(xiviv) Copies of resolutions of the Board of Directors or other authorizing documents of the Borrower, in form and substance satisfactory to the Agent, approving the Loan Documents and the Borrowings hereunder;
(v) An incumbency certificate executed by the Secretary or an Assistant Secretary of the Borrower, or equivalent document, certifying the names and signatures of the officers of the Borrower or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder;
(vi) Copies of the Articles of Incorporation, partnership agreement or other organizational document of each of the New Guarantors, certified as of a certificate of recent date by the Secretary of State of each Loan Party's jurisdiction its state of incorporation formation or organization as to the legal existence and status of each Loan Party in such stateincorporation;
(xvvii) a certificate Copies of the Secretaries of State Bylaws, if any, of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing New Guarantors, certified by the Secretary or an Assistant Secretary of each Loan Party as a foreign corporation or entity in such statesthe applicable New Guarantor;
(xviviii) consents to Copies of resolutions of the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle Board of Directors or other property from Lithia Financial Corporation;
(xvii) an opinion addressed to the Lenders from Xxxxxxauthorizing documents of each New Guarantor, Pepper & Shefelman, counsel to the Borrower, in such form and substance acceptable to the Agent in its sole discretion;
(xviii) the acknowledgments required by Section 5.20 hereof and the waivers and consents required by Section 5.21 hereof; and
(xix) such other documents, instruments, opinions and certificates and completion of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Agent or the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Party.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent , approving the Loan Documents to which it is a party;
(ix) An executed original of the Reaffirmation Agreement;
(x) An executed original of a guaranty and security agreement, executed by each New Guarantor, in each case, in form and substance satisfactory to Agent; and
(xi) Such amendments or restatements of the Initial Lendersexisting Loan Documents as Agent shall require, in each case, in form and substance satisfactory to Agent.
(eb) The Agent Borrower and the Initial Lenders Guarantors shall have executed and delivered the Subordinated Debt Documents, which shall be satisfied in form and substance satisfactory to Agent. Agent shall have received a certificate from the Secretary of the Borrower, dated as of the Closing Date, certifying to a true, correct, and complete copy of each of the material Subordinated Debt Documents. The Subordinated Debt Documents shall be in full force and effect and no material term or condition thereof shall have been amended, modified, or waived except with the Borrower's prior written consent of Agent. Agent shall have received all net cash proceeds in an aggregate amount not less than $25,000,000 from the issuance and sale by the Parent's capital structureBorrower of the notes evidencing the Subordinated Debt Obligations in repayment of the Existing Obligations.
(fc) The Borrower shall have delivered All fees (including any investment banking fees incurred in connection with the Initial Financial Statement transactions contemplated herein) required to the Initial Lenders.
(g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement be paid at closing shall have been repaid in full.
(h) The Borrower shall have paid to the Agent all Fees to be paid under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreement) or agreed to between the Borrower and the Agent on or prior to the Closing Date.
(i) The representations and warranties of Section IV are true and correct.paid;
Appears in 1 contract
Samples: Credit and Security Agreement (Emergent Information Technologies Inc)
Conditions Precedent to Initial Loans. The obligation of the Lenders each ------------------------------------- Lender to make the its initial Loans Loan is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datethat:
(a) The Agent shall have received on or before the following agreementsday of the initial Borrowing the following, documentseach dated such day (except for the document referred to in clause (ii)), certificates and opinions in form and substance reasonably satisfactory to the Agent and (except for the Initial Lenders and duly executed and delivered by the parties to this Agreement:Notes) in sufficient copies for each Lender;
(i) this AgreementThe Notes issued by the Borrowers to the order of each Lender;
(ii) Copies of the NotesArticles, substantially in Certificate of Incorporation, partnership agreement or other organizational document of each Borrower and the form Subsidiary Guarantor, certified as of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreementa recent date by the Secretary of State of its state of formation or incorporation;
(iii) the Security Documents, including the Security Agreement, and a guaranty Copies of the Obligations under this Agreement from the Loan Parties;
(iv) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies Bylaws, if any, of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3 of this Agreement Borrower and the applicable provisions of the Loan Documents;
(ix) a Notice or Notices of Borrowing or Conversion as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each of the Loan PartiesSubsidiary Guarantor, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed certified by the Borrower's Chief Financial Officer;
(xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to such Borrower or the Subsidiary Guarantor;
(iv) Copies of resolutions of the Board of Directors as to a corporation or other authorizing documents of each Borrower and the Managers as to a limited liability company authorizing the execution and delivery of Subsidiary Guarantor, approving the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(xii) the Articles of Incorporation (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiii) the Bylaws (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and theretoBorrowings hereunder, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereofBorrower or the Subsidiary Guarantor;
(xivv) a An incumbency certificate executed by the Secretary or an Assistant Secretary of each Borrower and the Subsidiary Guarantor or equivalent document, certifying the names and signatures of the Secretary officers of State of each such Borrower, the Subsidiary Guarantor or other Persons authorized to sign the Loan Party's jurisdiction of incorporation or organization as Documents and the other documents to the legal existence and status of each Loan Party in such statebe delivered hereunder;
(xvvi) a certificate Executed copies of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each all Loan Party as a foreign corporation or entity in such statesDocuments;
(xvivii) consents to A pro forma Compliance Certificate as of the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle or other property from Lithia Financial Corporation;end of June, 1997; and
(xviiviii) an A favorable opinion addressed to the Lenders from Xxxxxx, Pepper & Shefelman, of counsel to the BorrowerBorrowers and the Subsidiary Guarantor, in such form and substance acceptable substance, and with respect to the Agent in its sole discretion;
(xviii) the acknowledgments required by Section 5.20 hereof and the waivers and consents required by Section 5.21 hereof; and
(xix) such other documents, instruments, opinions and certificates and completion of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriaterequest.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Agent or the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Party.
(c) All necessary filings and recordings against the Collateral The Borrowers shall have been completed and paid to the Agent's liens on the Collateral shall have been perfected, for distribution (as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(dappropriate) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent and the Initial Lenders.
(e) The Agent and the Initial Lenders shall be satisfied with the Borrower's and the Parent's capital structure.
(f) The Borrower shall have delivered the Initial Financial Statement to the Initial Lenders.
(g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement shall have been repaid in full.
(h) The Borrower shall have paid to the Agent , all Fees to be paid under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreement) or agreed to between the Borrower and the Agent fees payable on or prior to the Closing Date.
(ic) The representations All corporate and warranties of Section IV are true legal proceedings and correctall instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the Agent and its counsel, and each Lender, and the Agent and the Agent's counsel shall have received any and all further information and documents which the Agent or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authorities.
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of the Lenders to make the initial any additional Revolving Credit Loans is subject to the satisfaction of the following conditions precedent satisfaction, on or prior to the Closing Date:
(a) The , of the condition that the Agent shall have received the following agreements, documents, certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders and duly executed and delivered by the parties to this Agreementthereto:
(i1) this This Agreement;
(ii2) the The Revolving Credit Notes, substantially in the form of Exhibits X-0, X-0, X-0, X-0, and A-5A to this ;
(3) The Security Documents;
(4) The Parent Guarantee;
(5) The Intercreditor Agreement;
(iii6) the Security Documents, including the Security Agreement, UCC-1 Financing Statements and a guaranty of the Obligations under this Agreement from the Loan PartiesUCC-3 Financing Statement Amendments;
(iv7) UCC-1 and UCC 1-A and similar Financing StatementsBorrowing Base Report as of a date within five (5) Business Days of the Closing Date;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions of the Loan Documents;
(ix) a 8) Notice or Notices of Borrowing or Conversion as of the Closing Date as to initial LoansDate;
(x9) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed by the Borrower's Chief Financial Officer;
(xi) a A certificate of the Secretary Clerk or an Assistant Secretary Clerk of each Loan Party the Borrower with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers, and certifying that neither the Articles of Organization nor the Bylaws of the Borrower has been amended since the date the same were delivered to BKB pursuant to the Existing Credit Agreement;
(xii10) the Articles of Incorporation (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiii) the Bylaws (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and thereto, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereof;
(xiv) a A certificate of the Secretary of State of each Loan Partythe Borrower's jurisdiction of incorporation or organization as to the legal existence and status good standing of each Loan Party the Borrower in such state;
(xv11) a certificate of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each Loan Party as a foreign corporation or entity in such states;
(xvi) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle or other property from Lithia Financial Corporation;
(xvii) an An opinion addressed to the Lenders from XxxxxxEdwaxxx & Angexx, Pepper & Shefelman, counsel xxunsel to the Borrower, in such form and substance acceptable to the Agent in its sole discretion;
(xviii) the acknowledgments required by Section 5.20 hereof and the waivers and consents required by Section 5.21 hereof; and
(xix12) such Such other documents, instruments, opinions and certificates and completion of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Agent or the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Party.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent and the Initial Lenders.
(e) The Agent and the Initial Lenders shall be satisfied with the Borrower's and the Parent's capital structure.
(f) The Borrower shall have delivered the Initial Financial Statement to the Initial Lenders.
(g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement shall have been repaid in full.
(h) The Borrower shall have paid to the Agent all Fees to be paid under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreement) or agreed to between the Borrower and the Agent on or prior to the Closing Date.
(i) The representations and warranties of Section IV are true and correct.
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of the Lenders Lender to make the its initial Loans Loan is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datethat:
(a) The Agent Lender shall have received on or before the following agreementsday of the initial Borrowing the following, documentseach dated such day (except for the document referred to in clause (ii)), certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders and duly executed and delivered by the parties to this AgreementLender:
(i) this AgreementThe Notes issued by the Borrower to the order of the Lender;
(ii) the Notes, substantially in the form Copies of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreement;
(iii) the Security Documents, including the Security Agreement, and a guaranty of the Obligations under this Agreement from the Loan Parties;
(iv) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions of the Loan Documents;
(ix) a Notice or Notices of Borrowing or Conversion as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed by the Borrower's Chief Financial Officer;
(xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(xii) the Articles of Incorporation (Incorporation, or other organizational document of the equivalent document depending on the form Borrower, certified as of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of a recent date by the Secretary of State of its jurisdiction state of formation or incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiiiii) Copies of the Bylaws (or Bylaws, if any, of the equivalent document depending on the form of entity) of each Loan Party and all amendments and theretoBorrower, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereofthe Borrower;
(xiviv) a certificate Copies of resolutions of the Secretary Board of State of each Loan Party's jurisdiction of incorporation or organization as to the legal existence and status of each Loan Party in such state;
(xv) a certificate of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each Loan Party as a foreign corporation or entity in such states;
(xvi) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle Directors or other property from Lithia Financial Corporation;
(xvii) an opinion addressed to the Lenders from Xxxxxx, Pepper & Shefelman, counsel to authorizing documents of the Borrower, in such form and substance acceptable to the Agent in its sole discretion;
(xviii) the acknowledgments required by Section 5.20 hereof and the waivers and consents required by Section 5.21 hereof; and
(xix) such other documents, instruments, opinions and certificates and completion of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Agent or the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Party.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent Lender, approving the Loan Documents and the Initial Lenders.Borrowings hereunder;
(ev) The Agent An incumbency certificate executed by the Secretary or an Assistant Secretary of the Borrower or equivalent document, certifying the names and signatures of the officers of the Borrower or other Persons authorized to sign the Loan Documents and the Initial Lenders other documents to be delivered hereunder;
(vi) Executed copies of all Loan Documents;
(vii) Executed copies of the Guaranties, together with all appropriate resolutions, incumbency certificates and other authorizing documents as the Lender may request;
(viii) Executed copies of the Security Agreements, together with: (w) all appropriate resolutions, incumbency certificates and other authorizing documents as the Lender may request; (x) acknowledgment copies (or other evidence of filing satisfactory to the Lender) of proper financing statements duly filed under the Uniform Commercial Code (or any equivalent or similar legislation) of all jurisdictions as may be necessary or, in the Lender's opinion, desirable to effectively perfect the interests in the personal property and fixtures granted under the security agreement(s); (y) evidence satisfactory to the Lender that all other filings, recordings, landlord consents and waivers and other actions the Lender deems necessary or advisable to establish, preserve and perfect the Liens granted to the Lender in real or personal property shall be satisfied have been made or obtained; and (z) any opinions of local or foreign counsel or such other counsel as the Lender may request with respect to the establishment, preservation, perfection and enforceability of the Liens granted in favor of the Lender;
(ix) A Borrowing Base Certificate setting forth in detail acceptable to the Lender the calculation of the Borrowing Base, certified by the chief financial officer or treasurer of the Borrower;
(b) All corporate and legal proceedings and all instruments and documents in connection with the Borrower's and the Parent's capital structure.
(f) The Borrower shall have delivered the Initial Financial Statement to the Initial Lenders.
(g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted transactions contemplated by this Agreement shall have been repaid be reasonably satisfactory in full.
(h) The Borrower content, form and substance to the Lender and its counsel, and the Lender and such counsel shall have paid to received any and all further information and documents which the Agent all Fees to be paid under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreement) Lender or agreed to between the Borrower and the Agent on or prior to the Closing Date.
(i) The representations and warranties of Section IV are true and correct.such counsel
Appears in 1 contract
Samples: Credit Agreement (Safetytek Corp)
Conditions Precedent to Initial Loans. The obligation of the Lenders each Lender to make the its initial Loans Loan is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datethat:
(a) The Agent shall have received on or before the following agreementsday of the initial Borrowing the following, documentseach dated such day (except for the document referred to in clause ((ii))), certificates and opinions in form and substance reasonably satisfactory to the Agent and (except for the Initial Lenders and duly executed and delivered by the parties to this AgreementNotes) in sufficient copies for each Lender:
(i) this AgreementThe Notes issued by the Borrower to the order of each Lender;
(ii) the Notes, substantially in the form of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreement;
(iii) the Security Documents, including the Security Agreement, and a guaranty Copies of the Obligations under this Agreement from the Loan Parties;
(iv) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies Articles or Certificate of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance Incorporation, or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions other organizational document of the Loan Documents;
(ix) a Notice or Notices of Borrowing or Conversion Borrower and each Guarantor, certified as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed recent date by the Borrower's Chief Financial Officer;
(xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(xii) the Articles of Incorporation (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction state of formation or incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiiiii) Copies of the Bylaws (or Bylaws, if any, of the equivalent document depending on the form of entity) of Borrower and each Loan Party and all amendments and theretoGuarantor, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereofsuch party;
(xiviv) Copies of resolutions of the Board of Directors or other authorizing documents of the Borrower and each Guarantor, approving the Loan Documents and the Borrowings and the reimbursement obligations under the Letters of Credit issued hereunder;
(v) An incumbency certificate executed by the Secretary or an Assistant Secretary of the Borrower and each Guarantor or equivalent document, certifying the names and signatures of the officers of the Borrower or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder;
(vi) A good standing certificate for Borrower and each Guarantor, issued as of a certificate of recent date by the Secretary of State of (A) the state in which Borrower and each Loan Party's jurisdiction of incorporation or organization as to the legal existence Guarantor is incorporated and status of (B) each Loan Party state in such statewhich it owns material assets and conducts material operations;
(xvvii) a certificate Executed copies of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each all Loan Party as a foreign corporation or entity in such statesDocuments;
(xviviii) consents to A Notice of Revolving Loan, executed by the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle or other property from Lithia Financial Corporationchief financial officer of Borrower;
(xviiix) an opinion addressed to The Guaranty, the Lenders from XxxxxxSubsidiary Security Agreement, Pepper & Shefelmanand the Subsidiary Intellectual Property Security Agreement, counsel to the Borrower, in such form and substance acceptable each duly executed by each Guarantor together with evidence satisfactory to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Subsidiary Security Agreement and Subsidiary Intellectual Property Security Agreement have been taken, including delivery to the Agent of financing statements duly executed by each Guarantor in its sole discretionform sufficient for filing in all offices in which the Agent may consider filing to be appropriate in order to perfect the Lenders' security interest;
(xviiix) Certificates representing the acknowledgments Pledged Shares referred to in Schedule III to the Security Agreement, accompanied by undated stock powers executed in blank;
(xi) Certificates as to coverage under the insurance policies required by Section 5.20 hereof the Security Agreement, endorsed or otherwise amended to include lender's loss payable endorsement and to name the waivers Agent as additional insured and consents required by Section 5.21 hereofloss payee; and
(xixxii) such Such other documents, instruments, opinions and certificates and completion of such other matters, matters as the Agent or any Initial Lender acting on behalf of the Lenders may reasonably deem necessary or appropriaterequest.
(b) No litigationThe Borrower shall have paid to the Agent, 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 for distribution (as appropriate) to the Agent or and the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Partyfees payable as required in Section 2.1.
(c) All necessary filings and recordings against the Collateral The Borrower shall have been completed executed and the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute delivered to each Lender a first-priority security interest (except as contemplated by Section 9.3 of this Warrant and Registration Rights Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.;
(d) The Borrower shall have executed and delivered all financing statements, notices, and other documents necessary or appropriate to perfect the security interest of Agent on behalf of itself and the Initial Lenders in the assets of Borrower, and such financing statements, notices and other documents shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory been filed or recorded with or delivered to the Agent and the Initial Lenders.appropriate Person;
(e) The Agent and the Initial Borrower shall have delivered to Lenders one or more legal opinions from its counsel, which opinions shall be satisfied with the Borrower's and the Parent's capital structure.acceptable to Lenders;
(f) The Borrower shall have delivered the Initial Financial Statement to the Initial Lenders.
(g) Any obligation Lenders a Borrowing Base Certificate prepared as of any Loan Party to U.S. Bank outstanding a recent date prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement shall have been repaid in full.initial Loan;
(hg) The Borrower shall have paid delivered to the Agent all Fees to be paid Trustee under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreement) or agreed to between the Borrower and the Agent on or prior Indenture an officer's certificate certifying to the Closing Date.
(i) The representations Trustee that it has designated the Debt under Section 2.1 hereof as "Designated Senior Debt" for purposes of the Indenture, and warranties shall have delivered a copy of Section IV are true and correct.such certificate to the Lenders; and
Appears in 1 contract
Samples: Credit Agreement (Coinstar Inc)
Conditions Precedent to Initial Loans. The obligation of ------------------------------------- the Lenders Bank to make the its initial Loans Loan is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datethat:
(a) The Agent Bank shall have received on or before the following agreementsday of the initial Borrowing the following, documentseach dated prior to or as of such day, certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders and duly executed and delivered by the parties to this AgreementBank:
(i) this AgreementThe Revolving Note issued by the Borrower to the order of the Bank;
(ii) the Notes, substantially in the form of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreement;
(iii) the Security Documents, including the Security Agreement, and a guaranty Copies of the Obligations under this Agreement from the Loan Parties;
(iv) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies Articles, Certificate of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance Incorporation, partnership agreement or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions other organizational document of the Loan Documents;
(ix) a Notice or Notices of Borrowing or Conversion Borrower, certified as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed recent date by the Borrower's Chief Financial Officer;
(xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(xii) the Articles of Incorporation (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction state of formation or incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiiiii) Copies of the Bylaws (or Bylaws, if any, of the equivalent document depending on the form of entity) of each Loan Party and all amendments and theretoBorrower, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereofthe Borrower;
(xiviv) a certificate Copies of resolutions of the Secretary Board of State of each Loan Party's jurisdiction of incorporation or organization as to the legal existence and status of each Loan Party in such state;
(xv) a certificate of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each Loan Party as a foreign corporation or entity in such states;
(xvi) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle Directors or other property from Lithia Financial Corporation;
(xvii) an opinion addressed to the Lenders from Xxxxxx, Pepper & Shefelman, counsel to authorizing documents of the Borrower, in such form and substance acceptable to the Agent in its sole discretion;
(xviii) the acknowledgments required by Section 5.20 hereof and the waivers and consents required by Section 5.21 hereof; and
(xix) such other documents, instruments, opinions and certificates and completion of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Agent or the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Party.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent Bank, approving the Loan Documents and the Initial Lenders.Borrowings hereunder;
(v) An incumbency certificate executed by the Secretary or an Assistant Secretary of the Borrower or equivalent document, certifying the names and signatures of the officers of the Borrower or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder;
(vi) a Guaranty executed by Southwest in form and substance satisfactory to Bank;
(vii) Executed copies of all Loan Documents;
(viii) 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) The Agent 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 Initial Lenders 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 satisfied with the Borrower's and the Parent's capital structure.certified by proper corporate or governmental authorities; and
(f) The Borrower Nothing shall have delivered occurred and the Initial Financial Statement 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 Initial Lenders.
Bank or which has, or could reasonably be expected to have, a materially adverse effect on the performance, business, property, assets, condition (g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation financial or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement shall have been repaid in full.
(h) The Borrower shall have paid to the Agent all Fees to be paid under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreementotherwise) or agreed to between the prospects of Borrower and the Agent on or prior to the Closing Dateits Subsidiaries taken as a whole.
(i) The representations and warranties of Section IV are true and correct.
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of the Lenders each Lender to make the its initial Loans Loan is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datethat:
(a) The Agent shall have received on or before the following agreementsday of the initial Borrowing the following, documentseach dated such day (except for the document referred to in clause (ii)), certificates and opinions in form and substance reasonably satisfactory to the Agent and (except for the Initial Lenders and duly executed and delivered by the parties to this AgreementNotes) in sufficient copies for each Lender:
(i) this AgreementThe Notes issued by the Borrower to the order of each Lender;
(ii) the Notes, substantially in the form of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreement;
(iii) the Security Documents, including the Security Agreement, and a guaranty Copies of the Obligations under this Agreement from the Loan Parties;
(iv) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies Articles or Certificate of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance Incorporation, or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions other organizational document of the Loan Documents;
(ix) a Notice or Notices of Borrowing or Conversion Borrower and each Guarantor, certified as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed recent date by the Borrower's Chief Financial Officer;
(xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(xii) the Articles of Incorporation (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction state of formation or incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiiiii) Copies of the Bylaws (or Bylaws, if any, of the equivalent document depending on the form of entity) of Borrower and each Loan Party and all amendments and theretoGuarantor, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereofsuch party;
(xiviv) Copies of resolutions of the Board of Directors or other authorizing documents of the Borrower and each Guarantor, approving the Loan Documents and the Borrowings hereunder;
(v) An incumbency certificate executed by the Secretary or an Assistant Secretary of the Borrower and each Guarantor or equivalent document, certifying the names and signatures of the officers of the Borrower or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder;
(vi) A good standing certificate for Borrower and each Guarantor, issued as of a certificate of recent date by the Secretary of State of (A) the state in which Borrower and each Loan Party's jurisdiction of incorporation or organization as to the legal existence Guarantor is incorporated and status of (B) each Loan Party state in such statewhich it owns material assets and conducts material operations;
(xvvii) a certificate Executed copies of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each all Loan Party as a foreign corporation or entity in such statesDocuments;
(xviviii) consents to A Notice of Term Loan, executed by the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle or other property from Lithia Financial Corporationchief financial officer of Borrower;
(xviiix) an opinion addressed to The Guaranty, the Lenders from XxxxxxSubsidiary Security Agreement, Pepper & Shefelmanand the Subsidiary Intellectual Property Security Agreements, counsel to the Borrower, in such form and substance acceptable each duly executed by each Guarantor together with evidence satisfactory to the Agent that all other actions necessary or advisable to perfect and protect the security interest created by the Subsidiary Security Agreement and Subsidiary Intellectual Property Security Agreements have been taken, including delivery to the Agent of financing statements duly executed by each Guarantor in its sole discretionform sufficient for filing in all offices in which the Agent may consider filing to be appropriate in order to perfect the Lenders' security interests;
(xviiix) Certificates representing the acknowledgments Pledged Shares referred to in the Security Agreement, accompanied by undated stock powers executed in blank;
(xi) Certificates as to coverage under the insurance policies required by Section 5.20 hereof the Security Agreement, endorsed or otherwise amended to include lender's loss payable endorsement and to name the waivers Agent as additional insured and consents required by Section 5.21 hereofloss payee; and
(xixxii) such Such other documents, instruments, opinions and certificates and completion of such other matters, matters as the Agent or any Initial Lender acting on behalf of the Lenders may reasonably deem necessary or appropriaterequest.
(b) No litigationThe Borrower shall have paid to the Agent, 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 for distribution (as appropriate) to the Agent or and the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Partyfees payable as required in Section 2.1.
(c) All necessary filings and recordings against the Collateral The Borrower shall have been completed executed and delivered to Imperial Bank the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.Warrant;
(d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as completed an audit of the Closing Date and its projections of future consolidated collateral pledged to secure the obligations hereunder, the results of operations, all in form and substance satisfactory which shall be acceptable to the Agent and the Initial Lenders.;
(e) The Borrower shall have executed and delivered all financing statements, notices, and other documents necessary or appropriate to perfect the security interest of Agent on behalf of itself and the Initial Lenders in the assets of Borrower, and such financing statements, notices and other documents shall be satisfied have been filed or recorded with or delivered to the Borrower's and the Parent's capital structure.appropriate Person;
(f) The Borrower shall have delivered the Initial Financial Statement to the Initial Lenders one or more legal opinions from its counsel, which opinions shall be acceptable to Lenders.; and
(g) Any obligation of any Loan Party to U.S. Bank outstanding prior to All corporate and legal proceedings and all instruments and documents in connection with the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted transactions contemplated by this Agreement shall have been repaid be reasonably satisfactory in full.
(h) The Borrower shall have paid content, form and substance to the Agent all Fees to be paid under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreement) or agreed to between the Borrower and its counsel, and each Lender, and the Agent on and the Agent's counsel shall have received any and all further information and documents which the Agent or prior such counsel may reasonably have requested in connection therewith, such documents where appropriate to the Closing Datebe certified by proper corporate or governmental authorities.
(i) The representations and warranties of Section IV are true and correct.
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of the Lenders Lender to make the initial Loans is subject to the satisfaction of the following conditions precedent on or prior to the Closing Date:
(a) The Agent Lender shall have received the following agreements, documents, certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders Lender and duly executed and delivered by the parties to this Agreementthereto:
(i) this This Agreement;
(ii) the NotesThe Revolving Credit Note, substantially in the form of Exhibits X-0, X-0, X-0, X-0, and A-5A to this AgreementExhibit A-1 hereto;
(iii) The Acquisition Line Note, substantially in the Security Documents, including the Security Agreement, and a guaranty form of the Obligations under this Agreement from the Loan PartiesExhibit A-2 hereto;
(iv) UCC-1 and UCC 1-A and similar Financing StatementsThe Security Documents;
(v) UCC-3 and UCC 3-A and similar Termination StatementsUCC-1 Financing Statements covering the Collateral;
(vi) true and correct copies UCC-3 Termination Statements to terminate Encumbrances of all Material Agreements and amendments theretoPersons other than the Lender of record against the Collateral, if any;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3 of this Agreement hereof and the applicable provisions of the Loan Security Documents;
(viii) Borrowing Base Report as of the Closing Date;
(ix) a Notice or Notices of Borrowing or Conversion as of the Closing Date as to initial LoansDate;
(x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed by the Borrower's Chief Financial Officer;
(xi) a A certificate of the Secretary or an Assistant Secretary of each Loan Party the Borrower with respect to resolutions of the its Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officersofficer(s);
(xiixi) the Articles The Certificate of Incorporation (or of the equivalent document depending on the form of entity) of each Loan Party Borrower and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporationformation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiixii) The By-laws of the Bylaws (or the equivalent document depending on the form of entity) of each Loan Party Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of each Loan Party the Borrower as being a true and correct copy thereof;
(xivxiii) a A certificate of the Secretary of State of each Loan Party's the Borrower’s jurisdiction of incorporation or organization as to the legal existence and status good standing of each Loan Party the Borrower in such state;
(xvxiv) a A certificate of the Secretaries of State of each jurisdiction identified state in Section 4.1 of this Agreement which the Borrower is doing business as to the due qualification and good standing of each Loan Party the Borrower as a foreign corporation or entity in such states;
(xvixv) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle or other property from Lithia Financial Corporation;
(xvii) an An opinion addressed to the Lenders Lender from Xxxxxx, Pepper & ShefelmanXxxxxxxx Xxxxx LLP, counsel to the Borrower, in such form and substance acceptable to the Agent in its sole discretion;
(xviiixvi) A certificate of the acknowledgments required by Section 5.20 hereof Responsible Officer as to the solvency of the Borrower, the accuracy of the Borrower’s representations and warranties and such other matters as the waivers and consents required by Section 5.21 hereofLender may request; and
(xixxvii) such Such other documents, instruments, opinions and certificates certificates, and completion of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Agent or the Initial LendersLender, might adversely affect the transactions contemplated by this Agreement hereby or might have a materially adverse effect Materially Adverse Effect on the assets, business, financial condition or prospects of any Loan Partythe Borrower.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's Lender’s liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and the Initial Lenders Borrower shall have received opened its primary business account with the Borrower's pro forma consolidated balance sheet as of Lender and established the Closing Date accounts and its projections of future consolidated results of operations, all in form and substance satisfactory to performed the Agent and the Initial Lendersother actions required by Section 5.13 hereof.
(e) The Agent and the Initial Lenders shall be satisfied with the Borrower's and the Parent's capital structure.
(f) The Borrower shall have delivered the Initial Financial Statement to the Initial Lenders.
(g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank All notes payable reflected on AMI’s financial statements for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement fiscal year ended December 31, 2006, shall have been repaid in full.
(f) Borrower shall have received an aggregate of $5,000,000 in net cash proceeds pursuant to equity financing transactions, the terms and conditions of which are satisfactory to the Lender in its sole discretion. For purposes of this provision, the parties hereto agree and acknowledge that the recently consummated transaction pursuant to which AMI issued 113.256 units of its securities in three separate closings, the third of which occurred on March 27, 2007, shall be deemed to constitute $4,000,000 of net cash proceeds towards this requirement.
(g) Lender shall have completed and be satisfied (in its sole discretion) with (i) its field examination of OMPI, and (ii) its site visit to OMPI’s facilities.
(h) Borrower shall have consummated its acquisition of each of OMPI and Rainier, upon terms and conditions reasonably satisfactory to the Lender.
(i) Lender shall have received audited financial statements for the fiscal year ended December 31, 2006, for each of OMPI and Rainier.
(j) The Borrower shall have delivered to the Lender a certificate satisfactory to the Lender that sets forth information required by the Patriot Act including the identity of the Borrower, the name and address of the Borrower and other information that will allow the Lender to identify the Borrower in accordance with the Patriot Act.
(k) The Borrower shall have paid an initial loan fee of $16,500, less any amount previously paid to the Agent all Fees Lender upon execution of the Commitment Letter dated March 28, 2007, the field examination fees incurred in connection with Lender’s examination of OMPI and Rainier, and Lender’s other fees required to be paid under this Agreement hereunder (including without limitation pursuant to Section 2.6(d) of this Agreement) or agreed to between the Borrower and the Agent on or prior to the Closing Datereasonable attorneys’ fees).
(il) The representations AMS and warranties of Section IV are true Rainier Acquisition Corp., a Delaware corporation, shall have executed and correctdelivered the Subsidiary Guaranties to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of the Lenders Lender Group (or any member thereof) to make the initial Loans Loan is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datethat:
(a) The Agent shall have received on or before the following agreementsday of the initial Borrowing the following, documentseach dated prior to or as of such day, certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders and duly executed and delivered by the parties to this AgreementAgent:
(i) this AgreementThe Notes issued by the Borrower to the order of each Lender;
(ii) the Notes, substantially in the form Copies of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreement;
(iii) the Security Documents, including the Security Agreement, and a guaranty of the Obligations under this Agreement from the Loan Parties;
(iv) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions of the Loan Documents;
(ix) a Notice or Notices of Borrowing or Conversion as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed by the Borrower's Chief Financial Officer;
(xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(xii) the Articles of Incorporation (Incorporation, partnership agreement or other organizational document of the equivalent document depending on the form Borrower, certified as of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of a recent date by the Secretary of State of its jurisdiction state of formation or incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiiiii) Copies of the Bylaws (or Bylaws, if any, of the equivalent document depending on the form of entity) of each Loan Party and all amendments and theretoBorrower, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereofthe Borrower;
(xiviv) a certificate Copies of resolutions of the Secretary Board of State of each Loan Party's jurisdiction of incorporation or organization as to the legal existence and status of each Loan Party in such state;
(xv) a certificate of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each Loan Party as a foreign corporation or entity in such states;
(xvi) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle Directors or other property from Lithia Financial Corporation;
(xvii) an opinion addressed to the Lenders from Xxxxxx, Pepper & Shefelman, counsel to authorizing documents of the Borrower, in such form and substance acceptable satisfactory to the Agent in its sole discretionLender, approving the Loan Documents and the Borrowings hereunder;
(xviiiv) An incumbency certificate executed by the acknowledgments required by Section 5.20 hereof Secretary or an Assistant Secretary of the Borrower, or equivalent document, certifying the names and signatures of the officers of the Borrower or other Persons authorized to sign the Loan Documents and the waivers and consents required by Section 5.21 hereof; andother documents to be delivered hereunder;
(xixvi) such other documents, instruments, opinions and certificates and completion An executed original of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriate.all Loan Documents;
(bvii) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality General Continuing Guaranties of the transactions contemplated by any Loan Document or seeks a restraining orderGuarantors, injunction or damages in connection therewithif any, or which, in the judgment of the Agent or the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Party.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent and its counsel;
(b) All fees required to be paid at closing shall have been paid;
(c) The Agent shall have received an opinion of counsel to the Initial Lenders.Borrower and the Guarantors in form and substance acceptable to the Agent and its counsel;
(d) No material adverse change shall have occurred since March 31, 1998 in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries, taken as a whole, or in the facts and information regarding such entities represented by the Borrower to the Agent as of such date;
(e) The Agent and the Initial Lenders No action, suit, investigation or proceeding shall be satisfied with have been pending or threatened in any court or before any arbitration or governmental authority that purports to affect the Borrower's , any of its Subsidiaries or the Loans contemplated hereby, or that could have a material adverse effect on the Borrower or any of its Subsidiaries or the Loans contemplated hereby, or on the ability of the Borrower and its Subsidiaries to perform their obligations under the Parent's capital structure.Loan Documents;
(f) The Borrower and its Subsidiaries shall have delivered the Initial Financial Statement to the Initial Lenders.been in compliance with all of their existing material financial obligations;
(g) Any obligation of any Loan Party to U.S. Bank outstanding prior All information previously furnished by the Borrower to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) Lender Group shall be true and any other Indebtedness not permitted by this Agreement shall have been repaid correct in full.all material respects;
(h) The Borrower Agent shall have paid to the Agent all Fees to be paid under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreement) or agreed to between the Borrower reviewed and the Agent on or prior to the Closing Date.found satisfactory Borrower's financial statements for its quarter ending March 31, 1998; and
(i) The representations All corporate and warranties of Section IV are true legal proceedings and correctall instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the Agent and its counsel, and the Agent and such counsel shall have received any and all further information and documents which the Agent or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authorities.
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letter of Credit is subject to the satisfaction of the following conditions precedent on or prior to the Closing Date:
(a) The Administrative Agent shall have received the following agreements, documents, certificates and opinions in form and substance reasonably satisfactory to the Administrative Agent and the Initial Lenders and duly executed and delivered by the parties to this Agreementthereto:
(i) this Agreement;
(ii) the Notes, substantially in the form of Exhibits X-0, X-0, X-0, X-0, and A-5A to this AgreementExhibit A hereto;
(iii) the Security Documents, including the Security Agreement, and a guaranty of the Obligations under this Agreement from the Loan Parties;
(iv) a Contribution Agreement among the Borrowers;
(v) the Holding Guaranty;
(vi) the Intercreditor Agreements;
(vii) complete copies of the Senior Debt Indenture, the Senior Notes, the Senior Debt Security Documents, the Hydro Debt Documents and the Permitted Guarantees;
(viii) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viiiix) Certificates of insurance or insurance binders evidencing compliance with Section 5.3 of this Agreement hereof and the applicable provisions of the Loan Security Documents;
(ix) a Notice or Notices of Borrowing or Conversion as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each Borrowing Base Report as of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed by the Borrower's Chief Financial OfficerClosing Date;
(xi) certificates from the chief financial officers of GAC and NAC with respect to solvency and other matters;
(xii) a certificate of the Secretary or an Assistant Secretary of each Loan Party of the Borrowers with respect to resolutions of the Board of Directors or Managers, as to a corporation or the Managers as to a limited liability company applicable, authorizing the execution and delivery of the Loan Documents and identifying the officer(s) or Managers, as applicable, authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officersofficers or Managers, as applicable;
(xiixiii) the Articles or Certificate of Incorporation (or the equivalent document depending on the form Articles of entity) Organization, as applicable, of each Loan Party of the Borrowers and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiixiv) the Bylaws (or the equivalent document depending on the form of entity) Operating Agreement, as applicable, of each Loan Party of the Borrowers and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of each Loan Party of the Borrowers as being a true and correct copy thereof;
(xivxv) a certificate of the Secretary of State of each Loan PartyBorrower's jurisdiction of incorporation or organization as to the legal existence and status of each Loan Party in such state;
(xv) a certificate of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each Loan Party as a foreign corporation or entity Borrowers in such states;
(xvi) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle or other property from Lithia Financial Corporation;
(xvii) an opinion addressed to the Lenders from Xxxxxx, Pepper & ShefelmanStoel Rives LLP, counsel to the Borrower, in such form and substance acceptable to the Agent in its sole discretion;
(xviii) the acknowledgments required by Section 5.20 hereof and the waivers and consents required by Section 5.21 hereofBorrowers; and
(xixxvii) such other documents, instruments, opinions and certificates and completion of such other matters, as the Administrative Agent or any Initial Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the reasonable judgment of the Administrative Agent or the Initial Lenders, might adversely affect the transactions contemplated by this Agreement hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Partythe Borrowers, taken as a whole.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Administrative Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and Borrowers shall have delivered the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory Financial Statements to the Agent and the Initial Lenders.
(e) The Agent GNA shall have issued, and received cash proceeds of at least $145,875,000 from, the Initial Lenders shall be satisfied with Senior Debt on the Borrower's terms and conditions described in the Parent's capital structureOffering Memorandum.
(f) The Borrower GNA shall have delivered issued, and received cash proceeds of at least $20,000,000 from, the Initial Financial Statement to Hydro Debt on the Initial Lendersterms and conditions set forth in the Hydro Debt Documents.
(g) Any obligation All Indebtedness of any Loan Party to U.S. Bank outstanding prior to GAC under the date of this Credit Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for dated May 17, 1996, as amended among GAC, the benefit of a Loan Party) financial institutions named therein and any other Indebtedness not permitted by this Agreement BKB as agent, shall have been repaid in full.
(h) All Indebtedness of NAC and NAS under the Credit Agreement dated May 15, 1996, as amended, among NAC, NAS, the financial institutions named therein and BKB as agent, shall have been repaid in full.
(i) The Borrower Borrowers shall have paid to the Administrative Agent all Fees fees to be paid under this Agreement hereunder (including without limitation pursuant to Section 2.6(d) of this Agreementhereof) or agreed to between the Borrower and the Agent on or prior to the Closing Date.
(i) The representations and warranties of Section IV are true and correct.
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of the Lenders Lender to make the initial Loans Loan is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datethat:
(a) The Agent Lender shall have received on or before the following agreementsday of the initial Borrowing the following, documentseach dated such day (except for the document referred to in clause (ii)), certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders and duly executed and delivered by the parties to this AgreementLender:
(i) this AgreementThe Notes issued by the Borrower to the order of the Lender;
(ii) the Notes, substantially in the form of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreement;
(iii) the Security Documents, including the Security Agreement, and a guaranty Copies of the Obligations under this Agreement from the Loan Parties;
(iv) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies Articles or Certificate of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance Incorporation, partnership agreement or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions other organizational document of the Loan Documents;
(ix) a Notice or Notices of Borrowing or Conversion Borrower, certified as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed recent date by the Borrower's Chief Financial Officer;
(xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(xii) the Articles of Incorporation (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction state of formation or incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiiiii) Copies of the Bylaws (or Bylaws, if any, of the equivalent document depending on the form of entity) of each Loan Party and all amendments and theretoBorrower, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereofthe Borrower;
(xiviv) a certificate Copies of resolutions of the Secretary Board of State Directors or other authorizing documents of each the Borrower, approving the Loan Party's jurisdiction Documents and the Borrowings and the reimbursement obligations under the Letters of incorporation or organization as to the legal existence and status of each Loan Party in such stateCredit issued hereunder;
(xvv) a An incumbency certificate executed by the Secretary or an Assistant Secretary of the Secretaries Borrower or equivalent document, certifying the names and signatures of State the officers of each jurisdiction identified in Section 4.1 of this Agreement as the Borrower or other Persons authorized to sign the due qualification Loan Documents and good standing of each Loan Party as a foreign corporation or entity in such statesthe other documents to be delivered hereunder;
(xvivi) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle or other property from Lithia Financial CorporationExecuted copies of all Loan Documents;
(xviivii) an opinion addressed to the Lenders from Xxxxxx, Pepper & Shefelman, counsel to the Borrower, Executed financing statements (Forms UCC-1);
(viii) A Borrowing Base Certificate setting forth in such form and substance detail acceptable to the Agent in its sole discretion;
(xviii) Lender the acknowledgments required calculation of the Borrowing Base, certified by Section 5.20 hereof and the waivers and consents required by Section 5.21 hereofchief financial officer or treasurer of the Borrower; and
(xixix) such Such other documents, instruments, opinions and certificates and completion of such other matters, documents as the Agent or any Initial Lender may reasonably deem necessary or appropriaterequest.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Agent or the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Party.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent and the Initial Lenders.
(e) The Agent and the Initial Lenders shall be satisfied with the Borrower's and the Parent's capital structure.
(f) The Borrower shall have delivered the Initial Financial Statement to the Initial Lenders.
(g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement shall have been repaid in full.
(h) The Borrower shall have paid to the Agent all Fees to be paid under this Agreement (including without limitation pursuant to Lender the fees payable as required in Section 2.6(d) of this Agreement) or agreed to between the Borrower and the Agent on or prior to the Closing Date2.1.
(ic) The representations All corporate and warranties of Section IV are true legal proceedings and correctall instruments and documents in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in content, form and substance to the Lender and its counsel, and the Lender, and the Lender's counsel shall have received any and all further information and documents which the Lender or such counsel may reasonably have requested in connection therewith, such documents where appropriate to be certified by proper corporate or governmental authorities.
Appears in 1 contract
Samples: Credit Agreement (Ditech Corp)
Conditions Precedent to Initial Loans. The obligation of the Lenders to make the initial Loans is subject to the satisfaction of the following conditions precedent on or prior to the Closing Date:
(a) The Agent shall have received the following agreements, documents, certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders and duly executed and delivered by the parties to this Agreementthereto:
(i) this This Agreement;
(ii) the The Notes, substantially in the form of Exhibits X-0, X-0, X-0, X-0, and A-5A to this AgreementExhibit A hereto;
(iii) the Security Documents, including the Security Agreement, and a guaranty Reaffirmations of the Obligations under this Agreement from Affiliate Guarantees and any Subsidiary Guarantees entered into in connection with the Loan PartiesOriginal Credit Agreement;
(iv) UCC-1 Reaffirmations of the Security Documents entered into in connection with the Original Credit Agreement and UCC 1-A and similar Financing Statementsany deliveries required in connection therewith;
(v) UCC-3 Evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and UCC 3-A and similar Termination Statements;
(vi) true and correct copies of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest is in real property to any Loan Party;
(viii) Certificates effect, together with certificates of insurance or insurance binders evidencing compliance with Section 5.3 of this Agreement hereof and the applicable provisions of the other Loan Documents;
(ixvi) Borrowing Base Report as of a date within seven (7) days prior to the Closing Date;
(vii) Notice or Notices of Borrowing or Conversion as of the Closing Date as to initial LoansDate;
(xviii) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed by the Borrower's Chief Financial Officer;
(xi) a A certificate of the Secretary or an Assistant Secretary of the Borrower and each Loan Party Guarantor with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents to which such Person is a party and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreementthe Loan Documents to which such Person is a party, and providing specimen signatures of such officers;
(xiiix) To the Articles extent modified since August 2, 2007, the Certificate of Incorporation (or of the equivalent document depending on the form of entity) of Borrower and each Loan Party Guarantor and all amendments and supplements thereto, as filed in the office of the Secretary of State of its such Person’s jurisdiction of incorporation, certified by said Secretary of State as being a true and correct copy thereof, or, if not so modified, a certificate of the Secretary or Assistant Secretary of such Person certifying to such effect;
(xiiix) To the extent modified since August 2, 2007, the Bylaws (or of the equivalent document depending on the form of entity) of Borrower and each Loan Party Guarantor and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of each Loan Party such Person as being a true and correct copy thereof, or, if not so modified, a certificate of the Secretary or Assistant Secretary of such Person certifying to such effect;
(xivxi) a A certificate of the Secretary of State of the Borrower’s and each Loan Party's Guarantor’s jurisdiction of incorporation or organization as to the legal existence and status good standing of each Loan Party such Person in such state;
(xvxii) a certificate of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each Loan Party as a foreign corporation or entity in such states;
(xvi) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle or other property from Lithia Financial Corporation;
(xvii) an An opinion addressed to the Lenders from Xxxxxx, Pepper Xxxxxxx Xxxxxx Xxxxxx & ShefelmanDodge LLP, counsel to the Borrower, in such form and substance acceptable to the Agent in its sole discretion;
(xviiixiii) A certificate of a Responsible Officer of the acknowledgments required by Borrower as to the solvency of the Borrower, the accuracy of the Borrower’s representations and warranties, the satisfaction of the conditions contained in this Section 5.20 hereof III and such other matters as the waivers and consents required by Section 5.21 hereofLender may request;
(xiv) Reaffirmation of the deposit account control agreement entered into in connection with the Original Credit Agreement; and
(xixxv) such Such other documents, agreements, instruments, opinions and certificates and completion of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Agent or the Initial LendersAgent, might adversely affect the transactions contemplated by this Agreement hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan PartyMaterial Adverse Effect.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's ’s liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent and the Initial Lenders.
(e) The Agent and the Initial Lenders shall be satisfied with the Borrower's and the Parent's capital structure.
(f) The Borrower shall have delivered the Initial Financial Statement to the Initial Lenders.
(g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement shall have been repaid in full.
(h) The Borrower shall have paid to the Agent all Fees fees to be paid under this Agreement hereunder (including without limitation pursuant to Section 2.6(d2.6(c) of this Agreementhereof) or agreed to between the Borrower and the Agent on or prior to the Closing Date.
(ie) The representations Borrower, its Subsidiaries and warranties of Section IV are true the Guarantors shall have furnished the Agent such documents and correctother information reasonably requested by the Lenders to comply with “know your customer” and anti-money-laundering regulations, including the Patriot Act.
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of ------------------------------------- the Lenders Bank to make the its initial Loans Loan is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datethat:
(a) The Agent Bank shall have received on or before the following agreementsday of the initial Borrowing the following, documentseach dated prior to or as of such day, certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders and duly executed and delivered by the parties to this AgreementBank:
(i) this AgreementThe Revolving Note issued by the Borrower to the order of the Bank;
(ii) the Notes, substantially in the form of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreement;
(iii) the Security Documents, including the Security Agreement, and a guaranty Copies of the Obligations under this Agreement from the Loan Parties;
(iv) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies Articles, Certificate of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance Incorporation, partnership agreement or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions other organizational document of the Loan Documents;
(ix) a Notice or Notices of Borrowing or Conversion Borrower, certified as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed recent date by the Borrower's Chief Financial Officer;
(xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(xii) the Articles of Incorporation (or the equivalent document depending on the form of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of the Secretary of State of its jurisdiction state of formation or incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiiiii) Copies of the Bylaws (or Bylaws, if any, of the equivalent document depending on the form of entity) of each Loan Party and all amendments and theretoBorrower, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereofthe Borrower;
(xiviv) a certificate Copies of resolutions of the Secretary Board of State of each Loan Party's jurisdiction of incorporation or organization as to the legal existence and status of each Loan Party in such state;
(xv) a certificate of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each Loan Party as a foreign corporation or entity in such states;
(xvi) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle Directors or other property from Lithia Financial Corporation;
(xvii) an opinion addressed to the Lenders from Xxxxxx, Pepper & Shefelman, counsel to authorizing documents of the Borrower, in such form and substance acceptable to the Agent in its sole discretion;
(xviii) the acknowledgments required by Section 5.20 hereof and the waivers and consents required by Section 5.21 hereof; and
(xix) such other documents, instruments, opinions and certificates and completion of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Agent or the Initial Lenders, might adversely affect the transactions contemplated by this Agreement or might have a materially adverse effect on the assets, business, financial condition or prospects of any Loan Party.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent Bank, approving the Loan Documents and the Initial Lenders.Borrowings hereunder;
(v) An incumbency certificate executed by the Secretary or an Assistant Secretary of the Borrower or equivalent document, certifying the names and signatures of the officers of the Borrower or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder;
(vi) a guaranty executed by Southwest in form and substance satisfactory to Bank;
(vii) Executed copies of all Loan Documents;
(viii) 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) The Agent 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 Initial Lenders 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 satisfied with the Borrower's and the Parent's capital structure.certified by proper corporate or governmental authorities; and
(f) The Borrower Nothing shall have delivered occurred and the Initial Financial Statement 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 Initial Lenders.
Bank or which has, or could reasonably be expected to have, a materially adverse effect on the performance, business, property, assets, condition (g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation financial or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement shall have been repaid in full.
(h) The Borrower shall have paid to the Agent all Fees to be paid under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreementotherwise) or agreed to between the prospects of Borrower and the Agent on or prior to the Closing Dateits Subsidiaries taken as a whole.
(i) The representations and warranties of Section IV are true and correct.
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of the Lenders Lender Group (or any member thereof) to make the initial Loans Loan is subject to the satisfaction of the following conditions precedent on or prior to the Closing Datethat:
(a) The Agent shall have received on or before the following agreementsday of the initial Borrowing the following, documentseach dated prior to or as of such day, certificates and opinions in form and substance reasonably satisfactory to the Agent and the Initial Lenders and duly executed and delivered by the parties to this AgreementAgent:
(i) this AgreementThe Notes issued by the Borrower to the order of each Lender;
(ii) the Notes, substantially in the form Copies of Exhibits X-0, X-0, X-0, X-0, and A-5A to this Agreement;
(iii) the Security Documents, including the Security Agreement, and a guaranty of the Obligations under this Agreement from the Loan Parties;
(iv) UCC-1 and UCC 1-A and similar Financing Statements;
(v) UCC-3 and UCC 3-A and similar Termination Statements;
(vi) true and correct copies of all Material Agreements and amendments thereto;
(vii) landlord's consents and waivers from each lessor who leases any interest in real property to any Loan Party;
(viii) Certificates of insurance or insurance binders evidencing compliance with Section 5.3 of this Agreement and the applicable provisions of the Loan Documents;
(ix) a Notice or Notices of Borrowing or Conversion as of the Closing Date as to initial Loans;
(x) a certificate with respect to the solvency of each of the Loan Parties, a Borrowing Base Certificate for each applicable Loan Commitment, and a Compliance Certificate, each signed by the Borrower's Chief Financial Officer;
(xi) a certificate of the Secretary or an Assistant Secretary of each Loan Party with respect to resolutions of the Board of Directors as to a corporation or the Managers as to a limited liability company authorizing the execution and delivery of the Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers;
(xii) the Articles of Incorporation (Incorporation, partnership agreement or other organizational document of the equivalent document depending on the form Borrower, certified as of entity) of each Loan Party and all amendments and supplements thereto, as filed in the office of a recent date by the Secretary of State of its jurisdiction state of formation or incorporation, certified by said Secretary of State as being a true and correct copy thereof;
(xiiiiii) Copies of the Bylaws (or Bylaws, if any, of the equivalent document depending on the form of entity) of each Loan Party and all amendments and theretoBorrower, certified by the Secretary or an Assistant Secretary of each Loan Party as being a true and correct copy thereofthe Borrower;
(xiviv) a certificate Copies of resolutions of the Secretary Board of State of each Loan Party's jurisdiction of incorporation or organization as to the legal existence and status of each Loan Party in such state;
(xv) a certificate of the Secretaries of State of each jurisdiction identified in Section 4.1 of this Agreement as to the due qualification and good standing of each Loan Party as a foreign corporation or entity in such states;
(xvi) consents to the security interests granted to the Lenders by Lithia Financial Corporation from each Affiliate which leases a Vehicle Directors or other property from Lithia Financial Corporation;
(xvii) an opinion addressed to the Lenders from Xxxxxx, Pepper & Shefelman, counsel to authorizing documents of the Borrower, in such form and substance satisfactory to the Lender, approving the Loan Documents and the Borrowings hereunder;
(v) An incumbency certificate executed by the Secretary or an Assistant Secretary of the Borrower, or equivalent document, certifying the names and signatures of the officers of the Borrower or other Persons authorized to sign the Loan Documents and the other documents to be delivered hereunder;
(vi) An executed original of all Loan Documents entered into by Borrower with or for the benefit of the Lender Group;
(vii) An executed original of all Loan Documents entered into by each of the Guarantors with or for the benefit of the Lender Group;
(b) All fees required to be paid at closing shall have been paid;
(c) The Agent shall have received an opinion of counsel to the Borrower and the Guarantors in form and substance acceptable to the Agent in and its sole discretioncounsel;
(xviiid) No material adverse change shall have occurred since December 31, 1998 in the acknowledgments required business, assets, operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries, taken as a whole, or in the facts and information regarding such entities represented by Section 5.20 hereof the Borrower to the Agent as of such date;
(e) No action, suit, investigation or proceeding shall have been pending or threatened in any court or before any arbitration or governmental authority that purports to affect the Borrower, any of its Subsidiaries or the Loans contemplated hereby, or that could have a material adverse effect on the Borrower or any of its Subsidiaries or the Loans contemplated hereby, or on the ability of the Borrower and its Subsidiaries to perform their obligations under the waivers Loan Documents;
(f) The Borrower and consents required its Subsidiaries shall have been in compliance with all of their existing material financial obligations;
(g) All information previously furnished by Section 5.21 hereofthe Borrower to the Lender Group shall be true and correct in all material respects; and
(xixh) such other documents, instruments, opinions All corporate and certificates legal proceedings and completion of such other matters, as the Agent or any Initial Lender may reasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages all instruments and documents in connection therewith, or which, in the judgment of the Agent or the Initial Lenders, might adversely affect with the transactions contemplated by this Agreement or might have a materially adverse effect on the assetsshall be reasonably satisfactory in content, business, financial condition or prospects of any Loan Party.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Agent's liens on the Collateral shall have been perfected, as contemplated by the Security Documents, which liens shall constitute a first-priority security interest (except as contemplated by Section 9.3 of this Agreement), and no other Encumbrance, except Permitted Encumbrances, shall exist against the Collateral.
(d) The Agent and the Initial Lenders shall have received the Borrower's pro forma consolidated balance sheet as of the Closing Date and its projections of future consolidated results of operations, all in form and substance satisfactory to the Agent and the Initial Lenders.
(e) The Agent and the Initial Lenders shall be satisfied with the Borrower's and the Parent's capital structure.
(f) The Borrower shall have delivered the Initial Financial Statement to the Initial Lenders.
(g) Any obligation of any Loan Party to U.S. Bank outstanding prior to the date of this Agreement (except for such amounts loaned from U.S. Bank directly to Lithia Financial Corporation or under letters of credit issued by U.S. Bank for the benefit of a Loan Party) and any other Indebtedness not permitted by this Agreement shall have been repaid in full.
(h) The Borrower shall have paid to the Agent all Fees to be paid under this Agreement (including without limitation pursuant to Section 2.6(d) of this Agreement) or agreed to between the Borrower its counsel, and the Agent on and such counsel shall have received any and all further information and documents which the Agent or prior such counsel may reasonably have requested in connection therewith, such documents where appropriate to the Closing Datebe certified by proper corporate or governmental authorities.
(i) The representations and warranties of Section IV are true and correct.
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