Conditions Precedent to Initial Loans. The obligation of each Lender to make its initial Loan hereunder is subject to the satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent: (i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (ii) if so requested within three Business Days of the Closing Date, a Note executed by the Borrower in favor of each requesting Lender; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party; (iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction; (v) favorable opinions of Xxxxxxx XxXxx, Esq., General Counsel for the Borrower, and Fulbright & Xxxxxxxx LLP, special Texas and New York counsel to the Borrower, addressed to the Administrative Agent and each Lender; (vi) the Audited Financial Statements; (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Section 4.02 (a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,
Appears in 1 contract
Samples: 364 Day Credit Agreement
Conditions Precedent to Initial Loans. The obligation of each No Lender shall be obligated to make its the Initial Term Loan or the initial Revolving Loan hereunder is subject or incur any initial Letter of Credit Obligation, or to take, fulfill, or perform any other action hereunder, until the following have been delivered to the satisfaction of Agent (the following date on which the Lenders make the Initial Term Loan and the initial Revolving Loan after all such conditions precedent:shall have been satisfied in a manner satisfactory to Agent or waived in accordance with this Agreement, the “Closing Date”):
(a) The Administrative Agent’s receipt a counterpart of this Agreement duly executed by each Loan Party;
(b) a certificate executed by the followingSecretary of each Loan Party, each the form of which shall be originalsis attached hereto as Exhibit C (the “Secretary’s Certificate”), telecopies or providing verification of incumbency and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by this Agreement and the other electronic copies Debt Documents and (followed promptly by originalsii) unless otherwise specified, each properly such Loan Party’s governing documents;
(c) Amended and Restated Notes duly executed by a Responsible Officer Borrower in favor of each applicable Lender;
(d) filed copies of UCC financing statements, collateral assignments, and terminations statements, with respect to the BorrowerCollateral, if applicableas Agent shall request;
(e) certificates of insurance evidencing the insurance coverage, each dated the Closing Date (orand satisfactory additional insured and lender loss payable endorsements, in each case as required pursuant to Section 6.4 herein;
(f) current UCC lien, judgment, bankruptcy and tax lien search results demonstrating that there are no other security interests or liens on the Collateral, other than Permitted Liens (as defined below);
(g) a New Warrant in favor of each Lender (or its affiliate or designee);
(h) a certificate of good standing of each Loan Party from the jurisdiction of such Loan Party’s organization and a certificate of foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified could reasonably be expected to have a Material Adverse Effect (as defined below), in each case as of certificates of governmental officials, a recent date before acceptable to Agent;
(i) copies of the Closing Date executed landlord consent and/or bailee letter in favor of Agent executed in connection with the Original Loan Agreement by the landlord or bailee, as applicable, for any third party location where (a) any Loan Party’s principal place of business, (b) any Loan Party’s books or records or (c) Collateral with an aggregate value in excess of $100,000 is located, a form of which is attached hereto as Exhibit E-1 and in the case Exhibit E-2, as applicable (each an “Access Agreement”);
(j) a legal opinion of financial statementsLoan Parties’ counsel, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:;
(ik) a completed EPS set-up form, a form of which is attached hereto as Exhibit G (the “EPS Setup Form”);
(l) an updated and completed perfection certificate, duly executed counterparts by each Loan Party (the “Perfection Certificate”), a form of this Agreement, sufficient in number for distribution which Agent previously delivered to the Administrative Agent, each Lender and the Borrower;
(iim) if so requested within three Business Days the Lockbox Account Agreement and one or more Account Control Agreements (as such terms are defined in Schedule F), in form and substance reasonably acceptable to Agent, duly executed by the applicable Loan Parties and the applicable depository or financial institution, for the Lockbox Account (as such term is defined in Schedule F) and each other deposit and securities account (other than deposit accounts used exclusively for payroll or withholding tax purposes) listed on the Perfection Certificate;
(n) an amended and restated pledge agreement, in form and substance reasonably satisfactory to Agent, executed by each Loan Party and pledging to Agent, for the benefit of itself and the Lenders, a security interest in (a) 100% of the shares of the outstanding capital stock, of any class, of each Subsidiary (as defined below) of each Loan Party that is incorporated under the laws of any State of the United States or the District of Columbia, (b) shares of the outstanding capital stock of any class of each Subsidiary of such Loan Party that is not incorporated under the laws of any State of the United States or the District of Columbia that constitute 65% of the total combined voting power of all capital stock of all classes of such Subsidiary and (c) any and all Indebtedness (as defined in Section 7.2 below) owing to Loan Parties (the “Pledge Agreement”);
(o) an amended and restated guaranty agreement (together with any other guaranty that purports to provide for a guaranty of the Obligation, the “Guaranty”), in form and substance reasonably satisfactory to Agent, executed by each Guarantor;
(p) copies of the License Agreement, dated as of August 9, 1999, by and between Borrower and Medtronic, Inc. (as amended, the “Medtronic License Agreement”) and each agreement evidencing the Subordinated Debt (as defined below), and a subordination agreement, in form and substance satisfactory to Agent, executed by Agent, Borrower and Medtronic, Inc. (the “Medtronic Subordination Agreement”);
(q) duly executed originals of an initial Borrowing Base Certificate from Borrower, dated the Closing Date, reflecting information concerning Qualified Accounts (as such term is defined in Schedule C) of Borrower as of a Note date not more than seven (7) days prior to the Closing Date;
(r) a disbursement instruction letter, in form and substance satisfactory to Agent, executed by each Loan Party, Agent and each Lender and indicating the Borrower Terms Loans and Revolving Loans to be made on the Closing Date (the “Disbursement Letter”);
(s) all other documents and instruments as Agent may reasonably deem necessary or appropriate to effectuate the intent and purpose of this Agreement (together with the Agreement, Note, the Warrants, the Perfection Certificate, the Pledge Agreement, the Guaranty, if any, the Secretary’s Certificate and the Disbursement Letter, and all other agreements, instruments, documents and certificates executed and/or delivered to or in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized from time to act as a Responsible Officer time in connection with this Agreement and or the other Loan Documents to which transactions contemplated hereby, the Borrower is a party“Debt Documents”);
(ivt) such documents Agent shall have received the Assignment Agreement, duly executed by GECC and certifications as the Administrative Agent may reasonably require Oxford and acknowledged and consented to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;Borrower; and
(vu) favorable opinions of Xxxxxxx XxXxx, Esq., General Counsel for Agent and Lenders shall have received the fees required to be paid by Borrower, and Fulbright & Xxxxxxxx LLPif any, special Texas and New York counsel to in the Borrower, addressed to the Administrative Agent and each Lender;
(vi) the Audited Financial Statements;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions respective amounts specified in Section 4.02 (a) 2.7, and (b) Borrower shall have been satisfiedreimbursed Agent and Lenders for all fees, (B) that there has been no event or circumstance since costs and expenses of closing presented as of the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Salient Surgical Technologies, Inc.)
Conditions Precedent to Initial Loans. The obligation of each Lender the Banks to make its the initial Loan Loans hereunder is and of the Agent to issue Letters of Credit hereunder shall be subject to the satisfaction of the following conditions precedent, in addition to the applicable conditions precedent set forth in Section 6.1 above and Section 6.3 below, that the Agent shall have received all of the following, in form and substance satisfactory to the Agent, each duly executed and certified or dated as of the date of this Agreement or such other date as is satisfactory to the Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably Evidence satisfactory to the Administrative Agent:Agent that the Company has received not less than $375,000,000 in proceeds from the issuance of the Senior Notes under the Senior Note Agreements with a minimum tenor of seven years, no scheduled amortization prior to the Termination Date and affirmative, negative and financial covenants, funding conditions and defaults or events of default no more restrictive than those under this Agreement or that would trigger the amendment provisions of Section 8.12.
(ib) executed counterparts of this Agreement, sufficient in number for distribution Evidence satisfactory to the Administrative Agent, each Lender Agent of payment in full and termination of the Borrower;Company’s existing revolving credit agreement.
(iic) if so requested within three Business Days Evidence satisfactory to the Agent of the Closing Date, a Note executed by consummation of the Borrower in favor of each requesting Lender;Finishing Group Acquisition.
(iiid) such certificates Evidence of resolutions or other actionall governmental, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority shareholder and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer third party consents (including Xxxx-Xxxxx-Xxxxxx clearance necessary in connection with this Agreement the Finishing Group Acquisition).
(e) The final terms and conditions of each aspect of the Finishing Group Acquisition shall be satisfactory to the Agent and the other Loan Documents Banks, the Finishing Group Purchase Agreement pursuant to which the Borrower Finishing Group Acquisition is to be consummated shall be satisfactory to the Agent and the Banks and shall provide for a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each maximum acquisition consideration of the Borrower and General Partner is duly organized or formed$650,000,000 plus any working capital, net asset, and that cash/debt adjustments provided for under the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of Xxxxxxx XxXxx, Esq., General Counsel for the BorrowerFinishing Group Purchase Agreement plus transaction costs, and Fulbright & Xxxxxxxx LLP, special Texas and New York counsel the Company will deliver to the Borrower, addressed to the Administrative Agent and each Lender;
(vi) the Audited Financial Statements;
(vii) a certificate signed by a Responsible Officer confirming that there have been no material modifications to the Finishing Group Purchase Agreement and confirming that the Finishing Group Acquisition will be consummated in accordance with the terms of the Borrower certifying Finishing Group Purchase Agreement substantially contemporaneously with the making of the initial Loan hereunder.
(Af) Audited financial statements for the assets and equity interests of the ITW Finishing Group being purchased in the Finishing Group Acquisition for the fiscal year ending December 31, 2010, which shall not be inconsistent in any material respect with the unaudited financial statements previously delivered to the Company.
(g) Payment of all fees and expenses due and payable as of the initial funding under or in connection with the Fee Letters upon the making of the initial Loan.
(h) A certificate signed by a Responsible Officer that the conditions specified in Section 4.02 (a) and (b) 6.3 have been satisfied, (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,.
Appears in 1 contract
Samples: Credit Agreement (Graco Inc)
Conditions Precedent to Initial Loans. The obligation of each No Lender shall be obligated to make its initial Loan hereunder is subject to the satisfaction Pro Rata Share of the Initial Loans, or to take, fulfill, or perform any other action hereunder, until the following conditions precedent:have been delivered to Agent, in form and substance satisfactory to Agent and Lenders (the date on which Lenders make the Initial Loans, the “Closing Date”):
(a) The Administrative Agent’s receipt a counterpart of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly this Agreement duly executed by a Responsible Officer of the Borrower, if applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative AgentLoan Party, each Lender and the BorrowerAgent;
(iib) if so requested within three Business Days of the Closing Date, a Note certificate duly executed by the Secretary or Assistant Secretary of each Loan Party, the form of which is attached as Exhibit A, providing verification of incumbency and certifying as to and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by the Loan Documents and (ii) such Loan Party’s formation documents certified by the Secretary of State of such Loan Party’s state of formation as of a recent date acceptable to Agent and such Loan Party’s governing documents;
(c) Notes duly executed by Borrower in favor of each requesting LenderLender that has requested a Note;
(iiid) such certificates filed copies of resolutions or other actionUCC financing statements, incumbency certificates and/or other certificates of Responsible Officers of collateral assignments, and termination statements, with respect to the Borrower Collateral, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a partyshall request;
(ive) certificates of insurance evidencing the insurance coverage and satisfactory additional insured and lender loss payable endorsements, in each case as required pursuant to Section 6.4;
(f) certified copies, dated as of a recent date acceptable to Agent, of UCC, judgment, bankruptcy and tax lien search results demonstrating that there are no Liens on the Collateral other than Permitted Liens;
(g) a certificate of status/good standing of each Loan Party from the jurisdiction of such documents Loan Party’s organization and certifications a certificate of foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified could reasonably be expected to have a Material Adverse Effect, in each case certified as of a recent date acceptable to Agent;
(h) an Access Agreement for each leased location or third party location to the Administrative extent required pursuant to Section 6.6, subject to the post closing requirements of Schedule 6.13;
(i) an executed legal opinion of Loan Parties’ counsel, in form and substance satisfactory to Agent;
(j) an Automatic Payment Authorization Agreement, duly executed by Borrower;
(k) a Perfection Certificate completed and duly executed by each Loan Party;
(l) a Disbursement Letter, duly executed by each Loan Party, Agent may reasonably require and Lenders;
(m) one or more Account Control Agreements, duly executed by the applicable Loan Parties and the applicable depository or financial institution, to evidence that the extent required pursuant to Section 6.10;
(n) a lockbox agreement, duly executed by the applicable Loan Parties and the applicable depository or financial institution, to the extent required pursuant to Section 6.10;
(o) a Pledge Agreement, duly executed by each Loan Party, together with the certificates and instruments required to be delivered in connection therewith and related undated powers and endorsements duly executed in blank;
(p) a Guaranty Agreement, duly executed by each Guarantor;
(q) a Warrant in favor of each Term Loan Lender (or its Affiliate or designee) for such Term Loan Lender’s Pro Rata Share of the number of shares of Stock of Borrower described in Section 2.7, duly executed by Borrower;
(r) the Intellectual Property Security Agreement required by Section 3.1, duly executed by each Loan Party;
(s) a pay-off letter satisfactory to Agent and duly executed by each of Zions First National Bank and MSK Investments, LLC, confirming that all of the Indebtedness and other obligations owed under the Existing Indebtedness (as applicable) will be repaid in full from the proceeds of the Initial Loans and all Liens upon any Loan Party’s property in favor of each of Zions First National Bank and MSK Investments, LLC (as applicable) shall be terminated immediately upon such payment;
(t) evidence of the conversion of the Convertible Debt to equity of Borrower and General Partner is the termination of all Liens on any Loan Party’s property securing such Convertible Debt;
(u) duly organized or formedexecuted originals of an initial Borrowing Base Certificate from Borrower, and that dated the Borrower is validly existing and in good standing in its jurisdiction Closing Date, reflecting information concerning Eligible Accounts as of organizationNovember 30, issued by the appropriate authorities of such jurisdiction2012;
(v) favorable opinions of Xxxxxxx XxXxx, Esq., General Counsel for all fees required to be paid by Borrower under the BorrowerLoan Documents, and Fulbright & Xxxxxxxx LLP, special Texas and New York counsel to the Borrower, addressed to the Administrative Borrower shall have reimbursed Agent and each Lender;Lenders for all fees, costs and expenses presented as of the Closing Date; and
(viw) all other documents and instruments as Agent or any Lender may reasonably deem necessary or appropriate to effectuate the Audited Financial Statements;
(vii) a certificate signed by a Responsible Officer intent and purpose of the Borrower certifying (A) that the conditions specified in Section 4.02 (a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,this Agreement.
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of each Lender Bank to make its the initial Loan hereunder is Loans under or pursuant to this Agreement on the date hereof shall be subject to the satisfaction of the following conditions precedent:
(ai) The Administrative Agent’s receipt of the followingEach Loan Party shall have executed and delivered to Bank, each of which shall be originalsor caused to have been executed and delivered to Bank, telecopies or other electronic copies (followed promptly by originals) unless otherwise specifiedall such instruments, each properly executed by a Responsible Officer of the Borroweragreements, if applicablecertificates, each dated the Closing Date (oropinions, in the case of certificates of governmental officials, a recent date before the Closing Date and in the case of financial statements, appraisals, evidence of title, evidence of insurance, environmental audits, and other information and other documents as Bank shall reasonably require, and all of the foregoing shall be in form and content acceptable to Bank and all instruments and agreements shall be in full force and effect and binding and enforceable obligations of such Loan Party and, to the extent that it is a party thereto or otherwise bound thereby, of each other Person who may be a party thereto or bound thereby including without limitation: (A) evidence of existence, good standing, qualification to conduct business and authority for such Loan Party and signatory on behalf of such Loan Party; (B) all notes, guaranties, security agreements, mortgages, deeds of trust, pledge agreements, assignments, financing statements and other documents requested by Bank to evidence the Indebtedness or to create, protect or perfect Liens upon the Collateral required by Bank as security for the Indebtedness and to accord Bank a perfected security position in the Collateral, subject only to Permitted Encumbrances; (C) a guaranty agreement from each Guarantor required by Bank; and (D) such other documents or agreements of security, assurances of Loan Document validity, legality and enforceability, and appropriate assurances of validity, perfection and priority of Lien as Bank may request, and Bank shall have received proof that appropriate security agreements, financing statements, mortgages, deeds of trust, collateral and other documents covering the Collateral shall have been executed and delivered by the appropriate Persons and recorded or filed in such jurisdictions and such other steps shall have been taken as necessary to perfect and protect, subject only to Permitted Encumbrances, the Liens granted thereby.
(ii) All actions, proceedings, instruments and documents required to carry out the borrowings and transactions contemplated by this Agreement or any other Loan Document or incidental thereto, and all other related legal matters, shall have been satisfactory to and approved by Bank.
(iii) Borrower shall pay to Bank all fees and expenses (including, but not limited to reasonable attorney’s fees, recordation costs, if any) incurred or required to be paid in connection with the execution and delivery of this Agreement and the related Loan Documents.
(iv) Bank shall have received copies of organizational documents of the Loan Parties.
(v) An audit of Borrower’s accounts, inventory, and any other Collateral required by Bank, in form and content acceptable to Bank, shall have been completed.
(vi) Borrower shall deliver to Bank pro forma financial statements, aged no more than 60 days from the date or period of such this Agreement, and a Compliance Certificate, demonstrating pro forma compliance with financial statementscovenants specified in Sections 4(k) and each 4(l).
(vii) Bank shall have received background checks on key personnel, which background checks shall be in form and content acceptable to Bank.
(viii) Borrower shall deliver to Bank a borrowing base report, in form and detail satisfactory to Bank, which report shall demonstrate at least $900,000 of borrowing availability under the Advance Formula after giving effect to the aggregate amount of the initial Loan requested under the Revolving Credit Note, together with supporting documentation thereto (detailing accounts receivable, accounts payable, and Inventory), all dated no earlier than 60 days prior to the date hereof.
(ix) Borrower shall deliver to Bank, in form and detail satisfactory to Bank, evidence of accounts receivable insurance for the benefit of the Bank.
(x) Satisfactory receipt and review of pre-funding accounts receivable and inventory examination.
(xi) Bank shall have received an upfront commitment fee in the amount of $156,250.
(xii) Borrower shall deliver to Bank a Compliance Certificate which shall demonstrate on a pro forma basis a Total Senior Funded Debt to Adjusted EBITDA Ratio of less than 3.0 to 1.0 and Total Funded Debt to Adjusted EBITDA Ratio of less than 4.0 to 1.0.
(xiii) Bank shall have received the Management Fee Subordination Agreement executed by Navigation Capital Partners, Inc. in form and substance reasonably satisfactory to Bank, together with copies of all documents evidencing, guarantying, securing or otherwise pertaining to the Administrative Agent:management fees described therein.
(ixiv) Bank shall have received the Xxxxxx Micro Subordination Agreement executed counterparts by Xxxxxx Micro in form and substance satisfactory to Bank, together with copies of this Agreementall documents evidencing, sufficient in number for distribution guarantying, securing or otherwise pertaining to the Administrative Agent, each Lender and the Borrower;Xxxxxx Micro Debt.
(iixv) if so requested within three Business Days of the Closing Date, a Note executed by the Borrower in favor of each requesting Lender;
(iii) Bank shall have received such certificates of resolutions other reports or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower due diligence materials as the Administrative Agent Bank may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of Xxxxxxx XxXxx, Esqrequest., General Counsel for the Borrower, and Fulbright & Xxxxxxxx LLP, special Texas and New York counsel to the Borrower, addressed to the Administrative Agent and each Lender;
(vi) the Audited Financial Statements;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Section 4.02 (a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,
Appears in 1 contract
Samples: Credit Agreement (American Virtual Cloud Technologies, Inc.)
Conditions Precedent to Initial Loans. The obligation of each Lender to make its initial Loan hereunder is subject to the satisfaction of the following conditions precedentprecedent that the Agents shall have received, on the Closing Date, the following, each dated the Closing Date unless otherwise indicated, in form and substance satisfactory to the Agents and each Lender and (except for the Notes) in sufficient copies for each Lender:
(a) The Administrative Agent’s receipt Notes payable to the order of each Lender.
(b) Certified copies of (i) the resolutions of the followingBoard of Directors of each Loan Party (or a duly authorized committee thereof) approving each Loan Document and each Related Document to which it is a party and (ii) all documents evidencing other necessary corporate action and required governmental and third party approvals, licenses and consents with respect to each of which shall be originals, telecopies or other electronic copies Loan Document and each Related Document and the transactions contemplated thereby.
(followed promptly by originalsc) unless otherwise specified, each properly executed by a Responsible Officer A copy of the Borrowerarticles or certificate of incorporation of each Loan Party, if applicable, each dated certified as of a date within 90 days prior to the Closing Date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the certificate of incorporation and the By-Laws of each Loan Party certified as of the Closing Date by the Secretary or an Assistant Secretary of such Loan Party.
(d) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party.
(e) Each of the Guaranties, duly executed by the Guarantor party thereto.
(f) An amendment to the Pledge Agreement, duly executed by each party thereto, causing the Obligations to be secured thereby, together with evidence that all action necessary or, in the case opinion of certificates of governmental officialsthe Documentation Agent, a recent date before desirable to perfect and protect the Closing Date and in Liens created by the case of financial statementsPledge Agreement (including, without limitation, the date or period filing of such financial statementsfinancing statements under the UCC) and each in form and substance reasonably satisfactory has been taken.
(g) An amendment to the Administrative Agent:
(i) executed counterparts of this Collateral Agency Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) if so requested within three Business Days of the Closing Date, a Note duly executed by the Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other actionDocumentation Agent, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as Collateral Agent and the Administrative Trustee, causing the Collateral Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act in such capacity with respect to the Obligations as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued secured by the appropriate authorities of such jurisdiction;
(v) favorable opinions of Xxxxxxx XxXxx, EsqPledge Agreement., General Counsel for the Borrower, and Fulbright & Xxxxxxxx LLP, special Texas and New York counsel to the Borrower, addressed to the Administrative Agent and each Lender;
(vi) the Audited Financial Statements;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Section 4.02 (a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,
Appears in 1 contract
Conditions Precedent to Initial Loans. The obligation of each No Lender shall be obligated to make its the Initial Term Loan or the initial Revolving Loan hereunder is subject or incur any initial Letter of Credit Obligation, or to take, fulfill, or perform any other action hereunder, until the following have been delivered to the satisfaction of Agent (the following date on which the Lenders make the Initial Term Loan and the initial Revolving Loan after all such conditions precedent:shall have been satisfied in a manner satisfactory to Agent or waived in accordance with this Agreement, the “Closing Date”):
(a) The Administrative Agent’s receipt a counterpart of this Agreement duly executed by each Loan Party;
(b) a certificate executed by the followingSecretary of each Loan Party, each the form of which shall be originalsis attached hereto as Exhibit C (the “Secretary’s Certificate”), telecopies or providing verification of incumbency and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by this Agreement and the other electronic copies Debt Documents and (followed promptly by originalsii) unless otherwise specified, each properly such Loan Party’s governing documents; [*] Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.
(c) Amended and Restated Notes duly executed by a Responsible Officer Borrower in favor of each applicable Lender;
(d) filed copies of UCC financing statements, collateral assignments, and terminations statements, with respect to the BorrowerCollateral, if applicableas Agent shall request;
(e) certificates of insurance evidencing the insurance coverage, each dated the Closing Date (orand satisfactory additional insured and lender loss payable endorsements, in each case as required pursuant to Section 6.4 herein;
(f) current UCC lien, judgment, bankruptcy and tax lien search results demonstrating that there are no other security interests or liens on the Collateral, other than Permitted Liens (as defined below);
(g) a New Warrant in favor of each Lender (or its affiliate or designee);
(h) a certificate of good standing of each Loan Party from the jurisdiction of such Loan Party’s organization and a certificate of foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified could reasonably be expected to have a Material Adverse Effect (as defined below), in each case as of certificates of governmental officials, a recent date before acceptable to Agent;
(i) copies of the Closing Date executed landlord consent and/or bailee letter in favor of Agent executed in connection with the Original Loan Agreement by the landlord or bailee, as applicable, for any third party location where (a) any Loan Party’s principal place of business, (b) any Loan Party’s books or records or (c) Collateral with an aggregate value in excess of $100,000 is located, a form of which is attached hereto as Exhibit E-1 and in the case Exhibit E-2, as applicable (each an “Access Agreement”);
(j) a legal opinion of financial statementsLoan Parties’ counsel, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:;
(ik) a completed EPS set-up form, a form of which is attached hereto as Exhibit G (the “EPS Setup Form”);
(l) an updated and completed perfection certificate, duly executed counterparts by each Loan Party (the “Perfection Certificate”), a form of this Agreement, sufficient in number for distribution which Agent previously delivered to the Administrative Agent, each Lender and the Borrower;
(iim) if so requested within three Business Days the Lockbox Account Agreement and one or more Account Control Agreements (as such terms are defined in Schedule F), in form and substance reasonably acceptable to Agent, duly executed by the applicable Loan Parties and the applicable depository or financial institution, for the Lockbox Account (as such term is defined in Schedule F) and each other deposit and securities account (other than deposit accounts used exclusively for payroll or withholding tax purposes) listed on the Perfection Certificate;
(n) an amended and restated pledge agreement, in form and substance reasonably satisfactory to Agent, executed by each Loan Party and pledging to Agent, for the benefit of itself and the Lenders, a security interest in (a) 100% of the shares of the outstanding capital stock, of any class, of each Subsidiary (as defined below) of each Loan Party that is incorporated under the [*] Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. laws of any State of the United States or the District of Columbia, (b) shares of the outstanding capital stock of any class of each Subsidiary of such Loan Party that is not incorporated under the laws of any State of the United States or the District of Columbia that constitute 65% of the total combined voting power of all capital stock of all classes of such Subsidiary and (c) any and all Indebtedness (as defined in Section 7.2 below) owing to Loan Parties (the “Pledge Agreement”);
(o) an amended and restated guaranty agreement (together with any other guaranty that purports to provide for a guaranty of the Obligation, the “Guaranty”), in form and substance reasonably satisfactory to Agent, executed by each Guarantor;
(p) copies of the License Agreement, dated as of August 9, 1999, by and between Borrower and Medtronic, Inc. (as amended, the “Medtronic License Agreement”) and each agreement evidencing the Subordinated Debt (as defined below), and a subordination agreement, in form and substance satisfactory to Agent, executed by Agent, Borrower and Medtronic, Inc. (the “Medtronic Subordination Agreement”);
(q) duly executed originals of an initial Borrowing Base Certificate from Borrower, dated the Closing Date, reflecting information concerning Qualified Accounts (as such term is defined in Schedule C) of Borrower as of a Note date not more than seven (7) days prior to the Closing Date;
(r) a disbursement instruction letter, in form and substance satisfactory to Agent, executed by each Loan Party, Agent and each Lender and indicating the Borrower Terms Loans and Revolving Loans to be made on the Closing Date (the “Disbursement Letter”);
(s) all other documents and instruments as Agent may reasonably deem necessary or appropriate to effectuate the intent and purpose of this Agreement (together with the Agreement, Note, the Warrants, the Perfection Certificate, the Pledge Agreement, the Guaranty, if any, the Secretary’s Certificate and the Disbursement Letter, and all other agreements, instruments, documents and certificates executed and/or delivered to or in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized from time to act as a Responsible Officer time in connection with this Agreement and or the other Loan Documents to which transactions contemplated hereby, the Borrower is a party“Debt Documents”);
(ivt) such documents Agent shall have received the Assignment Agreement, duly executed by GECC and certifications as the Administrative Agent may reasonably require Oxford and acknowledged and consented to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;Borrower; and
(vu) favorable opinions of Xxxxxxx XxXxx, Esq., General Counsel for Agent and Lenders shall have received the fees required to be paid by Borrower, and Fulbright & Xxxxxxxx LLPif any, special Texas and New York counsel to in the Borrower, addressed to the Administrative Agent and each Lender;
(vi) the Audited Financial Statements;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions respective amounts specified in Section 4.02 (a) 2.7, and (b) Borrower shall have been satisfiedreimbursed Agent and Lenders for all fees, (B) that there has been no event or circumstance since costs and expenses of closing presented as of the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Salient Surgical Technologies, Inc.)
Conditions Precedent to Initial Loans. The obligation of each No Lender shall be obligated to make its initial Loan hereunder is subject to the satisfaction Pro Rata Share of the Initial Loans, or to take, fulfill, or perform any other action hereunder, until the following conditions precedent:have been delivered to Agent, in form and substance satisfactory to Agent and Lenders (the date on which Lenders make the Initial Loans, the “Closing Date”):
(a) The Administrative Agent’s receipt a counterpart of the followingthis Agreement duly executed by each Loan Party, each of which shall be originals, telecopies or other electronic copies Lender and Agent;
(followed promptly by originalsb) unless otherwise specified, each properly a certificate duly executed by a Responsible Officer the Secretary of the Borrower, if applicable, each dated the Closing Date (orLoan Party, in substantially the case form attached as Exhibit A, providing verification of certificates incumbency and certifying as to and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by the Loan Documents and (ii) such Loan Party’s formation documents certified by the Secretary of governmental officials, State of such Loan Party’s state of formation as of a recent date before the Closing Date reasonably acceptable to Agent and in the case such Loan Party’s governing documents;
(c) copies of financial UCC financing statements, collateral assignments, and termination statements, with respect to the Collateral, as Agent shall reasonably request, in each case in form and substance ready for filing;
(d) certificates of insurance evidencing the insurance coverage and additional insured and lender loss payable endorsements reasonably satisfactory to Agent, in each case as required pursuant to Section 6.4;
(e) certified copies, dated as of a recent date or period reasonably acceptable to Agent, of UCC, judgment, bankruptcy and tax lien search results demonstrating that there are no Liens on the Collateral other than Permitted Liens;
(f) a certificate of status/good standing of each Loan Party from the jurisdiction of such financial statementsLoan Party’s organization and a certificate of foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified could reasonably be expected to have a Material Adverse Effect, in each case certified as of a recent date reasonably acceptable to Agent;
(g) and an Access Agreement for each leased location or third party location to the extent required pursuant to Section 6.6;
(h) an executed legal opinion of Loan Parties’ counsel, in form and substance reasonably satisfactory to the Administrative Agent:;
(i) executed counterparts of this an Automatic Payment Authorization Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the duly executed by Borrower;
(iij) if so requested within three Business Days a Perfection Certificate completed and duly executed by each Loan Party;
(k) a Disbursement Letter, duly executed by each Loan Party, Agent and Lenders;
(l) one or more Account Control Agreements, duly executed by the applicable Loan Parties and the applicable depository or financial institution, to the extent required pursuant to Section 6.10;
(m) a Pledge Agreement, duly executed by each Loan Party, together with the certificates and instruments required to be delivered in connection therewith and related undated powers and endorsements duly executed in blank;
(n) the Intellectual Property Security Agreement required by Section 3.1, duly executed by each Loan Party;
(o) evidence that Borrower has received at least $12,000,000 in unrestricted net cash proceeds from BARDA for achieving the labeling plan milestone under the BARDA Contract;
(p) a certificate from an authorized officer of Borrower confirming that each of the conditions in Section 4.2 applicable to funding of the Initial Loans have been satisfied; and
(q) all fees required to be paid by Borrower under the Loan Documents, and Borrower shall have reimbursed Agent and Lenders for all fees, costs and expenses presented as of the Closing Date, a Note executed by the Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of Xxxxxxx XxXxx, Esq., General Counsel for the Borrower, and Fulbright & Xxxxxxxx LLP, special Texas and New York counsel to the Borrower, addressed to the Administrative Agent and each Lender;
(vi) the Audited Financial Statements;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Section 4.02 (a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,
Appears in 1 contract
Samples: Loan and Security Agreement (Siga Technologies Inc)
Conditions Precedent to Initial Loans. The obligation of each No Lender shall be obligated to make its initial Loan hereunder is subject to the satisfaction Pro Rata Share of the Initial Loans, or to take, fulfill, or perform any other action hereunder, until the following conditions precedent:have been delivered to Agent, in form and substance satisfactory to Agent and Lenders (the date on which Lenders make the Initial Loans, the “Closing Date”):
(a) The Administrative Agent’s receipt a counterpart of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly this Agreement duly executed by a Responsible Officer of the Borrower, if applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative AgentLoan Party, each Lender and the BorrowerAgent;
(iib) if so requested within three Business Days of the Closing Date, a Note certificate duly executed by the Secretary of each Loan Party, the form of which is attached as Exhibit A, providing verification of incumbency and certifying as to and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by the Loan Documents and (ii) such Loan Party’s formation documents certified by the Secretary of State of such Loan Party’s state of formation as of a recent date acceptable to Agent and such Loan Party’s governing documents;
(c) Notes duly executed by Borrower in favor of each requesting LenderLender that has requested a Note;
(iiid) such certificates filed copies of resolutions or other actionUCC financing statements, incumbency certificates and/or other certificates of Responsible Officers of collateral assignments, and termination statements, with respect to the Borrower Collateral, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a partyshall request;
(ive) such documents and certifications as certificates of insurance evidencing the Administrative Agent may reasonably require insurance coverage required pursuant to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdictionSection 6.4;
(vf) favorable opinions copies, dated as of Xxxxxxx XxXxxa recent date acceptable to Agent, Esq.of UCC, General Counsel for judgment, intellectual property, bankruptcy and tax lien search results demonstrating that there are no Liens on the Borrower, and Fulbright & Xxxxxxxx LLP, special Texas and New York counsel to the Borrower, addressed to the Administrative Agent and each LenderCollateral other than Permitted Liens;
(vi) the Audited Financial Statements;
(viig) a certificate signed by of status/good standing of each Loan Party from the jurisdiction of such Loan Party’s organization and a Responsible Officer certificate of the Borrower certifying (A) that the conditions specified in Section 4.02 (a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified would reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect,, in each case certified as of a recent date acceptable to Agent;
Appears in 1 contract
Samples: Loan and Security Agreement (Cas Medical Systems Inc)
Conditions Precedent to Initial Loans. The obligation of each No Lender shall be obligated to make its the Term Loan or the initial Revolving Loan hereunder is subject or incur any initial Letter of Credit Obligation, or to take, fulfill, or perform any other action hereunder, until the following have been delivered to the satisfaction of Agent (the following date on which the Lenders make the Term Loan and the initial Revolving Loan after all such conditions precedent:shall have been satisfied in a manner satisfactory to Agent or waived in accordance with this Agreement, the “Closing Date”):
(a) The Administrative Agent’s receipt a counterpart of this Agreement duly executed by each Loan Party;
(b) a certificate executed by the followingSecretary of each Loan Party, each the form of which shall be originalsis attached hereto as Exhibit C (the “Secretary’s Certificate”), telecopies or providing verification of incumbency and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by this Agreement and the other electronic copies Debt Documents and (followed promptly by originalsii) unless otherwise specified, each properly such Loan Party’s governing documents;
(c) Notes duly executed by a Responsible Officer Borrower in favor of each applicable Lender;
(d) filed copies of UCC financing statements, collateral assignments, and terminations statements, with respect to the BorrowerCollateral, if applicableas Agent shall request;
(e) certificates of insurance evidencing the insurance coverage, each dated the Closing Date (orand satisfactory additional insured and lender loss payable endorsements, in each case as required pursuant to Section 6.4 herein;
(f) current UCC lien, judgment, bankruptcy and tax lien search results demonstrating that there are no other security interests or liens on the Collateral, other than Permitted Liens (as defined below);
(g) a Warrant in favor of each Lender (or its affiliate or designee);
(h) a certificate of good standing of each Loan Party from the jurisdiction of such Loan Party’s organization and a certificate of foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified could reasonably be expected to have a Material Adverse Effect (as defined below), in each case as of certificates of governmental officials, a recent date before acceptable to Agent;
(i) a landlord consent and/or bailee letter in favor of Agent executed by the Closing Date landlord or bailee, as applicable, for any third party location where (a) any Loan Party’s principal place of business, (b) any Loan Party’s books or records or (c) Collateral with an aggregate value in excess of $100,000 is located, a form of which is attached hereto as Exhibit E-1 and in the case Exhibit E-2, as applicable (each an “Access Agreement”);
(j) a legal opinion of financial statementsLoan Parties’ counsel, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:;
(ik) a completed EPS set-up form, a form of which is attached hereto as Exhibit G (the “EPS Setup Form”);
(l) a completed perfection certificate, duly executed counterparts by each Loan Party (the “Perfection Certificate”), a form of this Agreement, sufficient in number for distribution which Agent previously delivered to the Administrative Agent, each Lender and the Borrower;
(iim) if so requested within three Business Days the Lockbox Account Agreement and one or more Account Control Agreements (as such terms are defined in Schedule F), in form and substance reasonably acceptable to Agent, duly executed by the applicable Loan Parties and the applicable depository or financial institution, for the Lockbox Account (as such term is defined in Schedule F) and each other deposit and securities account (other than deposit accounts used exclusively for payroll or withholding tax purposes) listed on the Perfection Certificate;
(n) a pledge agreement, in form and substance reasonably satisfactory to Agent, executed by each Loan Party and pledging to Agent, for the benefit of itself and the Lenders, a security interest in (a) 100% of the shares of the outstanding capital stock, of any class, of each Subsidiary (as defined below) of each Loan Party that is incorporated under the laws of any State of the United States or the District of Columbia, (b) shares of the outstanding capital stock of any class of each Subsidiary of such Loan Party that is not incorporated under the laws of any State of the United States or the District of Columbia that constitute 65% of the total combined voting power of all capital stock of all classes of such Subsidiary and (c) any and all Indebtedness (as defined in Section 7.2 below) owing to Loan Parties (the “Pledge Agreement”);
(o) a guaranty agreement (together with any other guaranty that purports to provide for a guaranty of the Obligation, the “Guaranty”), in form and substance reasonably satisfactory to Agent, executed by each Guarantor;
(p) copies of the License Agreement, dated as of August 9, 1999, by and between Borrower and Medtronic, Inc. (as amended, the “Medtronic License Agreement”) and each agreement evidencing the Subordinated Debt (as defined below), and a subordination agreement, in form and substance satisfactory to Agent, executed by Agent, Borrower and Medtronic, Inc. (the “Medtronic Subordination Agreement”);
(q) duly executed originals of an initial Borrowing Base Certificate from Borrower, dated the Closing Date, reflecting information concerning Qualified Accounts (as such term is defined in Schedule C) of Borrower as of a Note date not more than seven (7) days prior to the Closing Date;
(r) a disbursement instruction letter, in form and substance satisfactory to Agent, executed by each Loan Party, Agent and each Lender and indicating the Borrower Terms Loans and Revolving Loans to be made on the Closing Date (the “Disbursement Letter”);
(s) a fully executed pay-off letter satisfactory to Agent confirming that all of the Indebtedness and other obligations owing to Horizon Technology Funding Company, LLC (“Horizon”) under that certain Venture Loan and Security Agreement dated as of May 24, 2005, as amended (the “Existing Indebtedness”) will be repaid in full from the proceeds of the Term Loan and any Revolving Loan made on the Closing Date and all liens upon any Loan Party’s property in favor of each requesting LenderHorizon shall be terminated immediately upon such payment;
(iiit) such certificates of resolutions or all other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower documents and instruments as the Administrative Agent may reasonably require evidencing deem necessary or appropriate to effectuate the identityintent and purpose of this Agreement (together with the Agreement, authority Note, the Warrants, the Fee Letter, the Perfection Certificate, the Pledge Agreement, the Guaranty, if any, the Secretary’s Certificate and capacity the Disbursement Letter, and all other agreements, instruments, documents and certificates executed and/or delivered to or in favor of each Responsible Officer thereof authorized Agent from time to act as a Responsible Officer time in connection with this Agreement and or the other Loan Documents to which transactions contemplated hereby, the Borrower is a party“Debt Documents”);
(ivu) such documents Agent shall have received an IRS Form 8821, in form and certifications as the Administrative Agent may reasonably require substance satisfactory to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;Agent; and
(v) favorable opinions of Xxxxxxx XxXxx, Esq., General Counsel for Agent and Lenders shall have received the fees required to be paid by Borrower, and Fulbright & Xxxxxxxx LLPif any, special Texas and New York counsel to in the Borrower, addressed to the Administrative Agent and each Lender;
(vi) the Audited Financial Statements;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions respective amounts specified in Section 4.02 (a) 2.7, and (b) Borrower shall have been satisfiedreimbursed Agent and Lenders for all fees, (B) that there has been no event or circumstance since costs and expenses of closing presented as of the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Salient Surgical Technologies, Inc.)
Conditions Precedent to Initial Loans. The obligation of each Lender to make its initial Loan hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date and in the case of financial statements, the date or period of such financial statements) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) if so requested within three Business Days of the Closing Date, a Note executed by the Borrower in favor of each requesting Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and General Partner is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization, issued by the appropriate authorities of such jurisdiction;
(v) favorable opinions of Xxxxxxx XxXxx, Esq., General Counsel for the Borrower, and Fulbright & Xxxxxxxx LLP, special Texas and New York counsel to the Borrower, addressed to the Administrative Agent and each Lender;
(vi) the Audited Financial Statements;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Section 4.02 (a4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,, (C) the current Debt Ratings, and (D) the Borrower’s true and correct U.S. taxpayer identification number; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from the date of the Audited Financial Statements through and including the Closing Date any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.
(d) Any fees, including any arrangement fees, agency fees and upfront fees, and any expenses of the Arrangers and Administrative Agent, in each case, as agreed in writing by the Borrower, required to be paid on or before the Closing Date shall have been paid.
(e) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto and the Administrative Agent hereby agrees to promptly provide the Borrower with a copy of any such notice received by the Administrative Agent.
Appears in 1 contract
