Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date: (a) the Closing Date shall occur on or before October 15, 1998; (b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts; (c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter; (ii) the Pay-Off Letter; (iii) the Suretyship Agreement; (iv) the Fee Letter; (v) the Agents' Side Letter; (vi) the Intercompany Subordination Agreement; (vii) the Stock Pledge Agreement; (viii) Termination statements relative to all financing statements filed by Sprint Communications; (ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.); (x) the Hale Xxxordination Agreement; (xi) the Customer List Escrow Agreement; and 39 (d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same; (e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower; (f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction; (g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel; (i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby; (j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts; (k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion; (l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement; (m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest; (n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders; (o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment; (p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses; (q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and (r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Appears in 4 contracts
Samples: Loan and Security Agreement (Network Plus Corp), Loan and Security Agreement (Network Plus Corp), Loan and Security Agreement (Network Plus Corp)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject advance of the Loan to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of Borrowers is conditional upon each of the following conditions on or before precedent having been met to the Closing Date:satisfaction of the Lender (the “Initial Advance”):
(a) the Closing Date Lender shall occur on or before October 15, 1998have received originally executed counterparts of this Agreement executed by a senior officer of each Borrower;
(b) Agent the Lender shall have received all financing statements and fixture filings required by the Lender Group, a duly executed by Notice of Borrowing from the applicable Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent the Lender shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a an executed officer’s certificate from the Secretary of each Borrower attesting to certifying and attaching the articles, by-laws and authorizing resolutions of such Borrower's Board of Directors authorizing its execution, delivery, Borrower and performance of this Agreement and the certifying such other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified factual matters requested by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each BorrowerLender or its counsel, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel all in form and substance satisfactory to Agent and each Lender in their sole discretionthe Lender, acting reasonably;
(ld) Agent the representations and Agent's counsel warranties contained in Section 4.1 are true and correct as of the date of the Initial Advance;
(e) no Default or Event of Default shall have occurred and be continuing or shall result from the making of the Initial Advance;
(f) satisfactory evidence to the Lender that, on or before July 16, 2014, all conditions to the completion of the acquisition by the Offeror pursuant to the terms of the Support Agreement of such number of Augusta Shares (together with any Augusta Shares already owned by the Offeror) representing in excess of fifty percent (50%) of the then outstanding Augusta Shares plus one Augusta Share have been satisfied or waived in writing by the Lender (other than payment of the purchase price and all share transfers relating thereto);
(g) satisfactory evidence to the Lender that the composition of the Augusta Board of Directors shall have been changed so that a majority of the Augusta Board of Directors shall be designees of the Offeror in accordance with Section 2.8 of the Support Agreement; and
(h) satisfactory evidence to the Lender that Augusta has provided to Red Kite written notice of the Loan in accordance with a copy the provisions of each Carrier the Red Kite Loan Agreement, or that Red Kite has waived compliance with part or all of Section 5.3(k) of the Red Kite Loan Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselLoan.
Appears in 3 contracts
Samples: Loan Agreement (HudBay Minerals Inc.), Loan Agreement (HudBay Minerals Inc.), Loan Agreement (Augusta Resource CORP)
Conditions Precedent to the Initial Advance. The obligation of the Initial Lender Group (or any member thereof) to make the initial Advance hereunder is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each or waiver of the following conditions precedent before or concurrently with the making of such Advance (and this Agreement shall become effective on and as of the first date (the “Closing Date”) on which such conditions precedent have been satisfied or waived):
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified):
(i) Certified copies of the resolutions of the Board of Directors of the Borrower approving the Borrowing and each Loan Document, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Borrowing and each Loan Document.
(ii) A copy of a certificate of the Secretary of State of the jurisdiction of formation of the Borrower, dated reasonably near the Closing Date, certifying (A) as to a true and correct copy of the certificate of formation of the Borrower and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to the Borrower’s certificate of formation on file in such Secretary’s office, (2) the Borrower has paid all annual taxes to the date of such certificate and (3) the Borrower is duly formed and in good standing or presently existing under the laws of the State of the jurisdiction of its formation.
(iii) A certificate of the Borrower, signed on behalf of the Borrower by its Chief Financial Officer and its Secretary or any Assistant Secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the certificate of formation of the Borrower since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ii), (B) a true and correct copy of the limited liability company agreement or other equivalent operating agreement of the Borrower as in effect on the date on which the resolutions referred to in Section 3.01(a)(i) were adopted and on the Closing Date, (C) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Closing Date and (D) the absence of any event occurring and continuing, or resulting from the Closing Date, that constitutes a Default.
(iv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document and the other documents to be delivered hereunder and thereunder.
(v) A certificate in substantially the form of Exhibit C, attesting to the Solvency of the Borrower before and after giving effect to the transactions contemplated hereunder, from its Chief Financial Officer.
(vi) A “pay-off” letter reasonably satisfactory to the Administrative Agent with respect to the repayment in full of the Bxxxxx Notes.
(vii) A favorable opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Borrower and of Mxxx X. Xxxxxxxx, in-house counsel to the Borrower, each in substantially the form of Exhibit D-1 and D-2 hereto, respectively.
(b) The Borrower shall have complied with all of the terms of the Engagement Letter to be complied with on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;.
(c) Agent There shall have received each exist no action, suit, investigation, or proceeding affecting the Borrower or any of its Subsidiaries pending or, to the knowledge of the following documentsBorrower, duly executed, and each such document shall threatened before any arbitrator or Governmental Authority that could reasonably be in full force and effect:
expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.“Disclosed Litigation”);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39.
(d) Agent The Borrower shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, paid all accrued and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer invoiced fees of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form Agents and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory all accrued expenses of the Agents (including the reasonable fees and expenses of counsel to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"Administrative Agent), in form such accrued and substance satisfactory invoiced expenses not to each Lender, acknowledging that Chase's liens exceed $100,000 in the Equipment leased by Borrower aggregate and to be deducted from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment proceeds of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselinitial Borrowing.
Appears in 2 contracts
Samples: Credit Agreement (Madison River Communications Corp.), Credit Agreement (Madison River Communications Corp)
Conditions Precedent to the Initial Advance. The obligations of the Lender under this Agreement and the obligation of the Lender Group (or any member thereof) to make the initial any Advance is shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions precedent on or before the Closing DateDate and on the date of such Advance:
(a) All terms, conditions and documentation in connection with this amendment and restatement shall be acceptable to the Closing Date shall occur on or before October 15, 1998;Lender.
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary The making of the Commonwealth of Massachusetts and Commitment shall not contravene any Law applicable to the City Clerk of Quincy, Massachusetts;Lender.
(c) Agent Lender shall have received a Certificate from an Authorized Officer stating that no material adverse change in the business, assets, prospects or financial condition of Borrower since the June 30, 1996 financial statements provided to the Lender. The Lender shall have received financial information regarding Borrower requested by it.
(d) The Lender shall have received an executed copy of this Agreement and the Note duly completed and correct. 21
(e) Borrower shall have delivered to the Lender a Certificate, dated the Closing Date, executed by an Authorized Officer, certifying that, to such Authorized Officer's knowledge, (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in Article IV hereof are true and correct in all material respects, and (iii) Borrower has complied with all agreements and conditions to be complied with by it in all material respects under the Loan Papers by such date.
(f) Borrower shall have each delivered to the Lender a Secretary's Certificate, dated the Closing Date, certifying (i) that attached copies of the certificates of organization certified by the Secretary of States of the appropriate states, and bylaws are true and complete, and in full force and effect, without amendment except as shown, (ii) that a copy of the resolutions authorizing execution and delivery of this Agreement and any Loan Papers, as appropriate, are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this loan transaction, and (iii) copies of certificates of good standing and certificates of existence for the States of Delaware and Arizona. The Lender may conclusively rely on the certificate delivered pursuant to this subsection until it receives notice in writing to the contrary.
(g) The Lender shall have received an opinion or opinions of counsel to Borrower, dated the Closing Date, acceptable to Lender and otherwise in form and substance satisfactory to Lender and its counsel, with respect to this loan transaction and otherwise, including, without limitation, opinions (i) to the valid and binding nature of the Loan Papers, (ii) to the power, authorization and corporate matters of each such Person taken in connection with the transactions contemplated by the Loan Papers, (iii) that the execution, delivery and performance by Borrower of the respective Loan Papers does not violate any of the terms of Borrower's agreements, and (iv) to such other matters as are reasonably requested by Lender's counsel.
(h) The Lender shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase")following, in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to Lender and its counsel:
(i) the Accounts generated by such Equipmentresults of UCC and other Lien searches against the assets of Borrower;
(pii) Agent shall have received payment evidence that all proceedings of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters taken in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be reasonably satisfactory in form and substance satisfactory to Agentthe Lender and its counsel; and Lender shall have received copies of all documents or other evidence which Lender or its counsel may reasonably request in connection with this facility, each including without limitation the resolutions of the Board of Directors of Borrower and the requisite authorizations of all other Persons necessary to authorize the transactions contemplated herein, certified to be true and correct by an Authorized Officer; 22
(iii) payment of all fees, costs and expenses (including, without limitation, attorneys' fees of Lender's counsel and the fees set forth in the Fee Letter due to be paid through the Closing Date);
(iv) a Compliance Certificate computed after giving effect to the Initial Advance;
(v) the Pledge and Security Agreement, properly executed on behalf of the Borrower.
(i) All corporate proceedings of Borrower taken in connection with the transactions contemplated hereby, and their respective counselall documents incidental thereto, shall be satisfactory in form and substance to the Lender. The Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
Appears in 2 contracts
Samples: Equipment Revolving Loan Agreement (Franchise Finance Corp of America), Revolving Loan Agreement (Franchise Finance Corp of America)
Conditions Precedent to the Initial Advance. The obligations of each Lender under this Agreement and the obligation of the each Lender Group (or any member thereof) to make the initial Advance is Initial Advances shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions precedent that on or before the Closing Date:
(a) All terms, conditions and documentation in connection with this Agreement shall be acceptable to the Closing Date shall occur on or before October 15, 1998;Lenders.
(b) The making of the Revolver A Loan, the Revolver B Loan and the Term Loan shall not contravene any Law applicable to the Administrative Agent or any Lender.
(c) Each Lender shall have received a Certificate from an Authorized Officer stating that no Material Adverse Change, as determined by the Borrower, shall have occurred and be continuing (A) in the financial markets with respect to cable television systems in general, or (B) in the Systems, business, assets, prospects, or financial condition since the December 31, 1999 audited financial statements provided to the Lenders. Administrative Agent shall have received all financing statements and fixture filings required by financial information regarding the Lender Group, duly executed by Borrower, the Parent and Agent shall have searches reflecting the filing of its financing statements with the Secretary each Subsidiary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed Borrower requested by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39it.
(d) Agent All proceedings of the Borrower, the Parent and each Subsidiary of the Borrower taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall have received a certificate from the Secretary of each Borrower attesting be reasonably satisfactory in form and substance to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent Lenders. Each Lender shall have received copies of each Borrower's Governing Documents, as amended, modified, all documents or supplemented to the Closing Date, certified by the Secretary of other evidence that it may reasonably request in connection with such Borrower;transactions.
(fe) Agent Each Lender shall have received a certificate an executed copy of status with respect to each Borrowerthis Agreement and its respective Notes, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent duly completed and correct. Each Lender shall have received certificates copies of status with respect to each its respective Fee Letters signed by Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer applicable. Each of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel following shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, duly executed by all parties thereto and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that delivered to the best Administrative Agent on behalf of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to the Administrative Agent, Special Counsel and each LenderLender to the extent required by the Administrative Agent: Each other Loan Paper, acknowledging that Chase's liens including, without limitation, the Pledge Agreements granting the Lenders a first and prior security interest in the Equipment leased by Borrower from Chase does not extend Pledged Interests, a Guaranty of the Obligation in form and substance acceptable to the Accounts generated Lenders executed by each Subsidiary of the Borrower, and all documentation and agreements necessary to create and perfect a first Lien in all the Collateral (subject to Permitted Liens), and all other documents and instruments in connection therewith. The Pledged Interests shall have been delivered to the Administrative Agent, and, with respect to the Capital Stock where applicable, together with stock powers executed in blank. The Borrower, the Parent and each Subsidiary obligor on any Debt other than the Obligations (including Intercompany Notes), together with each payee of such Debt, shall have entered into a Subordination Agreement for each such Debt acceptable to the Administrative Agent.
(f) Borrower shall have delivered to each Lender a Certificate, dated the Closing Date, executed by an Authorized Officer, certifying that (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in Article V hereof are true and correct as of such date, and (iii) each of the Borrower, the Parent and each Subsidiary of the Borrower has complied with all agreements and conditions to be complied with by it under the Loan Papers by such Equipmentdate.
(g) Borrower shall have delivered to each Lender a Secretary's Certificate, dated the Closing Date, certifying (i) that attached copies of the certificates of organization certified by the Secretary of States of the appropriate states for the Borrower, the Parent and each Subsidiary of the Borrower, and bylaws or partnership agreements, as appropriate, delivered to each Lender for each of the Borrower, the Parent and each Subsidiary of the Borrower are true and complete, and in full force and effect, without amendment except as shown, (ii) that a copy of the resolutions for each of the Borrower, the Parent and each Subsidiary of the Borrower authorizing execution and delivery of this Agreement and any Loan Papers, as appropriate, are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified, or revoked, and constitute all resolutions adopted with respect to this loan transaction, (iii) that copies of certificates of good standing, certificates of existence, and certificates of qualification for each of the Borrower, the Parent and each Subsidiary of the Borrower, as appropriate, for the relevant states, have been issued within 30 days prior to the Closing Date and delivered to the Lenders, (iv) that there exist no non-compete agreements that would limit the ability of the Borrower or any of its Subsidiaries to do business as such business is presently conducted executed by the Borrower, the Parent or any Subsidiary of the Borrower, (v) that the Pledged Interests have been issued and are outstanding, and (vi) to the incumbency, name, and signature of each officer of each of the Borrower, the Parent and each Subsidiary of the Borrower authorized to sign this Agreement and the Loan Papers, as applicable, and any amendments to this Agreement and the Loan Papers on its behalf. The Administrative Agent and Lenders may conclusively rely on the certificate delivered pursuant to this subsection until they receive notice in writing to the contrary.
(h) Each Lender shall have received opinions of Cairncross & Hempelmann, special counsel to the Borrower, the Parent and each Subsidiary of the Borrower, dated the Closing Date, in the form of Exhibit I hereto.
(i) Each Lender shall have received an opinion of Cole, Xxywid & Bravxxxxx, xxecial counsel for FCC matters to the Borrower, the Parent and each Subsidiary of the Borrower, dated the Closing Date in the form of Exhibit J hereto.
(j) Each Lender shall have received, in form and substance satisfactory to it, within 30 days prior to the Closing Date, (i) certificates from the Secretary of State and other appropriate officials of the State of Washington certifying that the Borrower, the Parent and each Subsidiary of the Borrower is each a corporation duly organized and validly existing under the Laws of the State of Washington as of the date thereof, and (ii) certificates of appropriate authorities of all jurisdictions where the Borrower and each Subsidiary of the Borrower is required to be qualified to do business, to the effect that it is in good standing and duly qualified to transact business in such jurisdictions.
(k) Each Lender shall have received each of the following, in form and substance satisfactory to the Administrative Agent, Lenders and Special Counsel:
(i) the results of UCC and other Lien searches against the assets of the Borrower, the Parent and each Subsidiary of the Borrower and the Systems;
(pii) if requested by the Lenders, reasonable evidence that the Borrower, the Parent and each Subsidiary of the Borrower is each the rightful owner and has good title to its Collateral;
(iii) payment of all fees, costs and expenses (including, without limitation, attorneys fees and the fees set forth in the Fee Letter due to be paid through the Closing Date);
(iv) copies of insurance binders or certificates covering the assets of the Borrower and each Subsidiary of the Borrower (including the Systems and including flood insurance) showing the Administrative Agent, on behalf of the Lenders, as loss payee or additional insured, where appropriate; and
(v) a Compliance Certificate computed after giving effect to the Initial Advance.
(l) Administrative Agent shall have received payment copies of all accrued the most recent Cumulative Leakage Index reports for the Borrower and unpaid Lender Group Expenses;its Subsidiaries, in form and substance satisfactory to the Administrative Agent.
(qm) Agent The Borrower's prior credit facility shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change paid, cancelled, and released in full, and all security interests granted by the financial condition of such Borrower or the Collateral since July 31, 1998; andany of its Affiliates pursuant thereto shall have been released.
(rn) all other documents All proceedings of the Borrower, the Parent and legal matters each Subsidiary of the Borrower taken in connection with the transactions contemplated by this Agreement shall have been deliveredhereby, executedand all documents incidental thereto, or recorded and shall be satisfactory in form and substance satisfactory to Agent, each Lender, . The Administrative Agent and their respective counseleach Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
Appears in 2 contracts
Samples: Credit Agreement (Northland Cable Properties Six LTD Partnership), Credit Agreement (Northland Cable Television Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Initial Advance pursuant to this Agreement is subject to the fulfillmentsatisfaction of all of the conditions precedent set forth in this Section 2.2(i). If any condition precedent is not satisfied but Lender nevertheless elects to make the Initial Advance, then that election shall not constitute a waiver of that condition and the condition shall be satisfied before any subsequent Advance. The conditions precedent to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing DateInitial Advance are:
(ai) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary All of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document Loan Documents shall be in full force and effect:
(i) the Disbursement Letter;, binding, and enforceable obligations of Borrower and of each other Person who may be a party thereto or bound thereby.
(ii) All actions, proceedings, instruments, and documents required to carry out the Pay-Off Letter;borrowings and transactions contemplated by this Agreement or under any Loan Document incidental thereto, and all other related legal matters, are satisfactory to and are approved by legal counsel for Lender, and that counsel has been furnished with certified copies of actions and proceedings and those other instruments and documents as they have requested.
(iii) Each Loan Party has performed and complied with all applicable agreements and conditions contained in the Suretyship Agreement;Loan Documents and that are then in effect.
(iv) Borrower has delivered, done, or caused to be delivered or done, to Lender’s full and complete satisfaction, each of the Fee Letterfollowing:
(A) this Agreement (together with all addenda, schedules, exhibits, certificates, opinions, financial statements and other documents to be delivered pursuant to this Agreement), the Note, the Deed of Trust, each Guaranty, the Pledge Agreement and all other Loan Documents duly executed, acknowledged (as provided), and delivered by Borrower and any Person who is a party thereto;
(vB) a consent of architect to the Agents' Side Letterassignment of the Plans to Lender and the consent of contractors to the assignment of construction contracts to Lender both in form and content satisfactory to Lender;
(viC) (1) copies of resolutions of the Intercompany Subordination Agreement;
board of directors, partners, members, or managers (viias applicable) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to Loan Party, evidencing approval of the resolutions of such Borrower's Board of Directors borrowing under this Agreement and the transactions contemplated by the Loan Documents, and authorizing its the execution, delivery, and performance by each Loan Party of each Loan Document to which it is a party or by which it is otherwise bound, which resolutions have been certified by a duly authorized officer, partner, or other representative (as applicable) of each Loan Party as of the date of this Agreement as being complete, accurate, and in full force and effect; (2) incumbency certifications of a (CYPRESS/FAIRFIELD) duly authorized officer, partner, or other representative (as applicable) of each Loan Party, in each case identifying those individuals who are authorized to execute the Loan Documents for and on behalf of each Person, respectively, and to otherwise act on behalf of each Person; (3) certified copies of each Person’s articles of incorporation and bylaws, partnership agreement, certificate of limited partnership, articles of organization, regulations, or operating agreement (as applicable) as each may from time to time be amended, supplemented, or restated; and (4) certificates of existence, good standing, and authority to do business (as applicable) certified substantially contemporaneously with the date of this Agreement, from the state or other jurisdiction of each Person’s organization and from each state in which the Land is located.
(D) proof that appropriate security agreements, financing statements, mortgages, deeds of trust, collateral, and those additional documents or certificates required by Lender or required under the terms of any Loan Document, and those other documents or agreements of security and appropriate assurances of validity, perfection, and priority of lien that Lender may request have been executed and delivered by the appropriate Persons and recorded or filed in those jurisdictions and all other steps shall have been taken as necessary to perfect, subject only to Permitted Exceptions and the Liens granted thereby;
(E) an opinion of Borrower’s, each Loan Party’s, and Guarantor’s legal counsel, dated as of the date of this Agreement, and covering those matters that are required by Lender and that is otherwise satisfactory in form and substance to Lender and Lender’s Counsel;
(F) to the extent applicable as of the date of the Initial Advance, copies of each authorization, license, permit, consent, order, or approval of, or registration, declaration, or filing with any Governmental Authority or other Person obtained or made by Borrower or any other Person in connection with transactions contemplated by the Loan Documents that is material to the financial condition of Borrower, that other Person, or the conduct of either’s business, or the transactions contemplated under this Agreement or the Mortgaged Property, including, but not limited to, building permits;
(G) if requested by Lender, UCC, tax lien, and judgment lien record searches, disclosing no notice of any Liens or encumbrances filed against any of the Mortgaged Property, other than the Permitted Exceptions and no tax liens or judgments against Borrower or any Guarantor;
(H) evidence of insurance coverage as required by this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers Deed of such Borrower to execute the sameTrust;
(eI) Agent shall have received copies the Title Policy (or the Title Company’s unconditional commitment to issue the Title Policy on recordation of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary Deed of such BorrowerTrust) and a Survey;
(fJ) Agent shall have received Phase I environmental report (jointly addressed to Borrower and Lender or accompanied by a certificate reliance letter addressed to Lender acceptable to Lender) covering the Land, in form and content and conducted and prepared by an environmental consultant acceptable to Lender. Borrower agrees that Lender may disclose the contents of status with respect the environmental report to each Borrower, dated as of a date within a reasonable proximity Governmental Authorities (to the Closing Dateextent required by applicable Legal Requirements) and Borrower shall deliver to Lender the written consent to the disclosure from the respective environmental consultant; (CYPRESS/FAIRFIELD)
(K) an appraisal conducted and prepared by an appraiser acceptable to the Lender covering the Mortgaged Property commissioned by and addressed to Lender, such certificate in form and content acceptable to be issued by the appropriate officer Lender, in its sole discretion. The appraisal shall comply with all appraisal requirements of the jurisdiction Lender and any applicable Governmental Authority and shall reflect an Appraised Value “As-Stabilized” of organization of such Borrowernot less than THIRTY-ONE MILLION FOUR HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS ($31,420,000.00), which certificate shall indicate that such Borrower is in good standing in such jurisdictionappraisal has been received and approved by Lender prior to the date of this Agreement;
(gL) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer evidence that none of the jurisdictions Land is located within any designated flood plain or special flood hazard area or, in which its failure lieu thereof, evidence that Borrower has applied for and received flood insurance covering the Improvements in an amount acceptable to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsLender;
(hM) Agent shall have received a certificate full-size, single sheet copy of insurance, together with all recorded subdivision or plat maps of the endorsements thereto, as are Land approved by all applicable Governmental Authorities (to the extent required by applicable Legal Requirements) and legible copies of all instruments representing exceptions to the state of title to the Land, including, without limitation, a copy of the recorded Replat as required pursuant to Section 6.10, 3.17 of the form and substance Deed of which shall be satisfactory to Agent, each Lender, and their respective counselTrust;
(iN) Agent shall have received the Closing Date Business Plan certified by an officer original or a copy of Borrower as being such officer's good faith best estimate each proposed Construction Contract and of the financial performance of Borrower during the period covered therebyany Architectural Contract;
(jO) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusettscopy of the Plans;
(kP) Agent shall evidence that all applicable zoning ordinances and restrictive covenants affecting the Land permit the intended use of the Improvements and have received opinions been or will be complied with in all respects;
(Q) current Financial Statements of Borrower's counsel Borrower and each Guarantor;
(R) if requested by Lender, a soils and geological report issued by a laboratory approved by Lender in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with covering the Land, including a copy summary of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998soils test borings; and
(rS) a third party cost review of the Project construction and renovation budgets (including sufficient contingencies), the construction contract, and a Property Condition Report (“PCR”) with respect to the Phase I environmental report, such review to be paid by Borrower and approved by Lender;
(v) Lender has received payment of the Origination Fee;
(vi) Borrower has opened and fully funded the Cash Collateral Account with Lender;
(vii) Borrower has opened a Depository Account with Lender; (CYPRESS/FAIRFIELD)
(viii) Lender has received all of those other documents instruments, documents, and legal matters evidence (not inconsistent with the terms of this Agreement) that Lender may have requested in connection with the transactions contemplated by making of the Loan under this Agreement shall have been deliveredAgreement, executedand all instruments, or recorded documents, and shall be evidence are satisfactory to Lender in form and substance satisfactory to Agent, each Lender, substance; and
(ix) Lender has received from Borrower and their respective counselapproved the final Budget.
Appears in 2 contracts
Samples: Construction Loan Agreement, Construction Loan Agreement (CNL Growth Properties, Inc.)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is under the Revolving Credit Facility or to cause to be issued any Letter of Credit hereunder shall be subject to the fulfillmentcondition precedent that the Lender shall have received all of the following, each in form and substance satisfactory to the satisfaction of Agent, each Lender in Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:’s sole discretion.
(a) This Agreement, properly executed on behalf of the Closing Date shall occur on or before October 15, 1998Borrowers;
(b) Agent shall have received all financing statements and fixture filings required by the Lender GroupThe Note, duly properly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary on behalf of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsBorrowers;
(c) Agent shall A true and correct copy of any and all leases pursuant to which the Borrowers are leasing the Premises, together with a landlord’s disclaimer and consent with respect to each such lease;
(d) Current searches of appropriate filing offices showing that (i) no state or federal tax or judgment liens have received each been filed and remain in effect against any Borrower, (ii) no financing statements have been filed and remain in effect against the Borrowers, except those financing statements relating to liens permitted pursuant to Section 7.1 hereof and those financing statements filed by the Lender, and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interests granted hereunder, to the extent the Security Interests are capable of being perfected by filing;
(e) A certificate of the following documentsSecretary or an Assistant Secretary of each Borrower, duly executed, and each such document shall be in full force and effect:
certifying as to (i) the Disbursement Letter;
(ii) resolutions of the Pay-Off Letter;
(iii) directors and, if required, the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions shareholders of such Borrower's Board of Directors , authorizing its the execution, delivery, delivery and performance of this Agreement and the other Loan Documents to which Documents, (ii) the articles of incorporation and bylaws of such Borrower is a party Borrower, and authorizing specific (iii) the signatures of the officers or agents of such Borrower authorized to execute and deliver this Agreement, the same;
(e) Agent shall have received copies of each Borrower's Governing Documentsother Loan Documents and other instruments, as amendedagreements and certificates, modifiedincluding Advance requests, or supplemented to the Closing Date, certified by the Secretary on behalf of such Borrower;
(f) Agent shall have received a A current certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer Secretary of State of the jurisdiction state of organization of such each Borrower’s incorporation, which certificate shall indicate certifying that such Borrower is in good standing in compliance with all corporate organizational requirements of such jurisdictionstate;
(g) Agent shall have received certificates of status with respect Evidence that each Borrower is duly licensed or qualified to each Borrower, each dated as of a date within a reasonable proximity to transact business in all jurisdictions where the Closing Date, such certificates to be issued by the appropriate officer character of the jurisdictions in which its failure to be duly qualified property owned or licensed would constitute a Material Adverse Change, which certificates shall indicate that leased or the nature of the business transacted by it makes such Borrower is in good standing in such jurisdictionslicensing or qualification necessary;
(h) Agent shall have received a A certificate of insurance, together with an officer of each Borrower confirming the endorsements thereto, as are required by Section 6.10, the form representations and substance of which shall be satisfactory to Agent, each Lender, and their respective counselwarranties set forth in Article V hereof;
(i) Agent shall have received An opinion of counsel to each Borrower, addressed to the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of Lender in form and substance and from counsel satisfactory to the financial performance of Borrower during the period covered therebyLender in its sole discretion;
(j) Agent shall have received Certificates of the insurance required hereunder, with all hazard insurance containing a Collateral Access Agreement relative to Borrower's location lender’s loss payable endorsement in Quincy, Massachusettsfavor of the Lender and with all liability insurance naming the Lender as an additional insured;
(k) Agent a Borrowing Base certificate in the form attached hereto as Exhibit D demonstrating to Lender’s satisfaction that the initial Advance does not exceed the Borrowing Base, less the L/C Amount, if any, and less reserves imposed pursuant to Section 2.1 hereof, if any.
(l) Waiver of any interest of the owner of each premises (other than the premises that are the subject of landlord’s disclaimers and consents referred to in subsection (c) above) upon which any Inventory may be located (acknowledging that such Inventory is owned by a Borrower and that the Lender holds a first priority security interest therein and waving any lien or other right that any such entity may otherwise claim in such inventory), which agreement shall have received opinions of Borrower's counsel in form and substance satisfactory be on terms acceptable to Agent and each the Lender in their its sole discretion;
(lm) Agent Payment of the fees and Agent's counsel shall have been provided with a copy commissions due through the date of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreementinitial Advance, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified expenses incurred by an officer of Borrower as true, correct, the Lender through such date and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are by the subject of a Permitted ProtestBorrowers under Section 9.6 hereof;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Appears in 1 contract
Samples: Credit and Security Agreement (Synergetics Usa Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Foothill to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Foothill and their respective its counsel, of each of the following conditions on or before the Closing Date:Effective Date (except as expressly set forth below):
(a) the Effective Date shall have occurred on or before the Closing Date and the Closing Date shall occur on or before October 15September 30, 19981999;
(b) Agent Foothill shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsfixture filings;
(c) Agent Foothill shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter[intentionally omitted];
(iii) the Suretyship AgreementMajestic Star Ship Mortgage;
(iv) the Fee LetterBorrower Stock Pledge Agreement, together with the original certificates of Stock that are the subject of the Liens created thereunder as well as stock powers executed in blank with respect thereto;
(v) the Agents' Side LetterTrademark Security Agreement;
(vi) the Intercompany Subordination AgreementGuaranty;
(vii) the Stock Pledge Guarantor Security Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;the Member Stock Pledge Agreement; and
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Intercreditor Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent Foothill shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors Manager authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent Foothill shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Effective Date, certified by the Secretary of such Borrower;
(f) Agent Foothill shall have received a certificate of status with respect to each Borrower, dated as within 10 days of a date within a reasonable proximity to the Closing Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent Foothill shall have received certificates of status with respect to each Borrower, each dated as within 15 days of a date within a reasonable proximity to the Closing Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent Foothill shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, Foothill and their respective its counsel;
(i) Agent Foothill shall have received the Closing Date Business Plan certified by an officer duly executed certificates of Borrower as being such officer's good faith best estimate title with respect to that portion of the financial performance Collateral that is subject to certificates of Borrower during the period covered therebytitle;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts[intentionally omitted];
(k) Agent Foothill shall have received opinions an opinion of Borrower's counsel in form and substance satisfactory to Agent and each Lender Foothill in their its sole discretion, such opinion to include, without limitation, an opinion as to the due issuance and valid existence of Borrower's Gaming Licenses;
(l) Agent and Agent's counsel Foothill shall have been provided with a copy received appraisals of each Carrier Agreement in respect of a Material Carrierthe Real Property Collateral, the Bell Xxxantic Interconnection AgreementEquipment and Borrower's Casino operations, in each case satisfactory to Foothill, and (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Foothill (each agreement a "Mortgage Policy" and, collectively, the "Mortgage Policies") in respect amounts satisfactory to Foothill assuring Foothill that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correctall defects and encumbrances except Permitted Liens, and complete, the Mortgage Policies shall otherwise be in form and Agent shall have had a reasonable opportunity substance reasonably satisfactory to review each such Carrier AgreementFoothill;
(m) Agent [Intentionally omitted];
(n) Foothill shall have received a certificate from an officer of each Borrower certifying satisfactory evidence that all tax returns required to be filed such by Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(no) Agent Foothill shall have received a certificate from an officer copies of each of the following agreements, in each case, certified by the Secretary of Borrower certifying that to as being true, correct, and complete as of the best Effective Date, and the same shall have been reviewed by Foothill and its counsel and the results of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are review shall be satisfactory to Agent and Foothill in its sole discretion:
(i) the LendersSenior Note Documents;
(oii) Agent shall have received a letter from Chase Equipment Leasing, Inc. the BHR Operating Agreement;
("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in iii) the Equipment leased by Borrower from Chase does not extend to Berthing Agreement;
(iv) [intentionally omitted];
(v) the Accounts generated by such EquipmentHarbor Lease;
(vi) the Harbor Lease Assignment;
(vii) the Development Agreement; and
(viii) the Management Agreement;
(p) Agent Foothill shall have received payment evidence, satisfactory to Foothill and its counsel that Borrower has made all necessary registrations with, obtained all necessary consent or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority (including, without limitation, the Indiana Gaming Commission) relative to the execution, delivery, and performance of all accrued and unpaid Lender Group Expensesthe Loan Documents by Borrower;
(q) Agent Foothill shall have received a certificate from an officer background checks on Bardxx xxx Michxxx Xxxxx, xxd the results of each such background checks shall be satisfactory to Foothill in its sole discretion;
(r) Foothill shall have received evidence, satisfactory to Foothill in its sole discretion, that, as of the Effective Date, Borrower certifying that there has is in compliance with the Development Agreement;
(s) The Majestic Star Ship Mortgage shall have been no Material Adverse Change recorded in the financial condition applicable filing office of the United States Coast Guard and such other governmental agency as shall be necessary, and Foothill shall have received confirmation, satisfactory to Foothill, of such recordation;
(t) Borrower or shall have Excess Availability, as of the Collateral since July 31Effective Date, 1998after giving effect to the initial Advances of not less than $5,000,000; and
(ru) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, Foothill and their respective its counsel.
Appears in 1 contract
Samples: Loan and Security Agreement (Majestic Star Casino LLC)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) each Bank to make the its initial Advance to the Company is subject to the fulfillmentoccurrence of or receipt by the Agent of the following, all in form and substance satisfactory to the satisfaction of Agent, each Lenderand, and their respective counselwhere relevant, of each of the following conditions on or before the Closing Dateexecuted by all appropriate parties:
(a) this Agreement (which includes the Closing Date shall occur on or before October 15, 1998Guaranty);
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsone Note for each Bank;
(c) Agent shall have received each a Notice of Advance with respect to the following documents, duly executed, and each such document shall be in full force and effect:
(i) initial Advance meeting the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.requirements of SECTION 2.03(A);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from of an officer and of the Secretary secretary or an assistant secretary of the Company certifying, (i) true and complete copies of each Borrower attesting to of the articles or certificate of incorporation, as amended and in effect of the Company and each of the Guarantors, the bylaws, as amended and in effect, of the Company and each of the Guarantors and the resolutions adopted by the board of such Borrower's Board directors of Directors the Company and each of the Guarantors (A) authorizing its the execution, delivery, delivery and performance by the Company and each of its Subsidiaries of this Agreement and the other Loan Documents to which such Borrower it is or will be a party and, in the case of the Company, the Advances to be made hereunder, (B) approving the forms of the Loan Documents to which it is or will be a party and which will be delivered at or prior to the date of the initial Advance and (C) authorizing specific officers of such Borrower the Company and each of its Subsidiaries to execute and deliver the same;Loan Documents to which it is or will be a party and any related documents, including, any agreement contemplated by this Agreement, (ii) the incumbency and specimen signatures of the officers of the Company and each of its Subsidiaries executing any documents on its behalf and (iii) that there has been no change in the businesses or financial condition of the Company which could reasonably be expected to have a Material Adverse Effect since December 31, 1996.
(e) Agent shall have received copies of each Borrower's Governing Documentsa favorable, as amended, modified, or supplemented signed opinion addressed to the Closing DateAgent and the Banks from Bracewell & Patterson, certified by L.L.P., counsel to the Secretary of such BorrowerCompany and the Guaranxxxx;
(fx) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity the payment to the Closing Date, Agent and the Banks of all Fees owing on the Execution Date and all reasonable fees and expenses (including the reasonable fees and disbursements of Andrews & Kurth L.L.P.) agreed upon by such certificate parties to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictionpaid on thx Xxxxxtiox Xxxe;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated appropriate public officials as of a date within a reasonable proximity to the Closing Dateexistence, such certificates good standing and qualification to be issued by the appropriate officer do business as a foreign corporation, as applicable, of the jurisdictions Company and its Subsidiaries in each jurisdiction in which the ownership of its properties or the conduct of its business requires such qualifications and where the failure to be duly qualified or licensed so qualify would constitute have a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;Effect; and
(h) Agent shall have received a certificate The consummation of insurance, together the initial public offering of the stock of the Company pursuant to the S-1 Registration Statement filed with the endorsements theretoSecurities and Exchange Commission on March 26, 1997, as are required by Section 6.10amended, the form and substance at a minimum share price of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer $8.00 per share with gross proceeds of Borrower as being such officer's good faith best estimate at least $48,800,000. The acceptance of the financial performance benefits of Borrower during the period covered thereby;
(j) Agent initial Credit Event shall have received constitute a Collateral Access Agreement relative representation and warranty by the Company to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to the Agent and each Lender of the Banks that, all of the conditions specified in their sole discretion;
(l) Agent and Agent's counsel this Section above shall have been provided with a copy satisfied or waived as of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counseltime.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligations of each Lender under this Agreement and the obligation of the each Lender Group (or any member thereof) to make the initial Initial Advance is shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions precedent that on or before the Closing Date:
(a) the Closing Date All terms, conditions and documentation in connection with this amendment and restatement shall occur on or before October 15, 1998;be acceptable to Lenders.
(b) The making of the Commitment shall not contravene any Law applicable to Administrative Agent or any Lender.
(c) Each Lender shall have received a Certificate from an Authorized Officer stating that no material adverse change in the business, assets, prospects, or financial condition of Company and its Subsidiaries since the December 31, 1996 financial statements provided to Lenders. Administrative Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, financial information regarding Company and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed Subsidiary of Company requested by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39it.
(d) Agent Each Lender shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance an executed copy of this Agreement and the other Loan Documents to which such Borrower is a party its respective Notes, duly completed and authorizing specific officers of such Borrower to execute the same;
(e) Agent correct. Lenders shall have received copies of each Borrower's Governing Documentsthe Fee Letters signed by Company, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer applicable. Each of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel following shall have been provided with a copy delivered to Administrative Agent on behalf of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to Administrative Agent, Special Counsel and each Lender. The Guaranty Agreement executed by each Guarantor and a Subordination Agreement executed by each payee of an Intercompany Note.
(e) Company shall have delivered to Administrative Agent a Certificate, acknowledging dated the -39- Closing Date, executed by an Authorized Officer, certifying that, to such Authorized Officer's knowledge, (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in Article IV hereof are true and correct in all material respects, and (iii) Company and each Subsidiary of Company has complied with all agreements and conditions to be complied with by it in all material respects under the Loan Papers by such date.
(f) Company and each Guarantor shall have each delivered to Administrative Agent on behalf of Lenders a Secretary's Certificate, dated the Closing Date, certifying (i) that Chase's liens attached copies of the certificates of organization certified by the Secretary of States of the appropriate states, and bylaws are true and complete, and in full force and effect, without amendment except as shown, and (ii) that a copy of the Equipment leased by Borrower from Chase does resolutions authorizing execution and delivery of this Agreement and any Loan Papers, as appropriate, are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not extend been amended, modified, or revoked, and constitute all resolutions adopted with respect to this loan transaction. Administrative Agent and Lenders may conclusively rely on the certificate delivered pursuant to this subsection until they receive notice in writing to the Accounts generated by such Equipment;contrary.
(pg) Administrative Agent shall have received payment an opinion or opinions of all accrued counsel to Company and unpaid Lender Group Expenses;its Subsidiaries, dated the Closing Date, acceptable to Lenders and otherwise in form and substance satisfactory to Lenders and Special Counsel, with respect to this loan transaction and otherwise, including, without limitation, opinions (i) to the valid and binding nature of the Loan Papers, (ii) to the power, authorization and corporate matters of each such Person taken in connection with the transactions contemplated by the Loan Papers, (iii) that the execution, delivery and performance by Company and the Subsidiaries of Company of the respective Loan Papers does not violate any of the terms of Company's or any such Subsidiary's agreements, and (iv) to such other matters as are reasonably requested by Special Counsel.
(qh) Simultaneously with the receipt of proceeds of the Initial Advance, all Indebtedness under the Existing Credit Agreement shall be paid in full, whereupon the Existing Credit Agreement shall automatically terminate and be of no further force or effect.
(i) Administrative Agent shall have received a certificate from an officer received, on behalf of Lenders, each Borrower certifying that there has been no Material Adverse Change of the following, in the financial condition of such Borrower or the Collateral since July 31, 1998; andform and substance satisfactory to Administrative Agent and Special Counsel:
(ri) evidence that all other documents proceedings of Company and legal matters its Subsidiaries taken in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be reasonably satisfactory in form and substance to Lenders and Special Counsel; and each Lender shall have received copies of all documents or other evidence which Lenders or Special Counsel may reasonably request in connection with this facility, including without limitation the resolutions of the Board of Directors of Company and each Subsidiary, and the requisite authorizations of all other Persons necessary to authorize the transactions contemplated herein, certified to be true and correct by an Authorized Officer; -40-
(ii) payment of all fees, costs and expenses (including, without limitation, attorneys' fees of Special Counsel and the fees set forth in the Fee Letter due to be paid through the Closing Date); and
(iii) a Compliance Certificate computed after giving effect to the Initial Advance.
(j) All corporate proceedings of Company and its Subsidiaries taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall be satisfactory in form and substance to Agent, each Lender, . Administrative Agent and their respective counseleach Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
Appears in 1 contract
Samples: Credit Agreement (Franchise Finance Corp of America)
Conditions Precedent to the Initial Advance. Letter of Credit and the Term Loans. The obligation of the Lender Group (or any member thereof) to make the initial Advance Advance, to issue the initial Letter of Credit or to make the Term Loans is subject to the fulfillment, to the satisfaction of Agent, each Lender, Lender and their respective its counsel, of each of the following conditions on or before the Amendment Closing Date:
(a) the Amendment Closing Date shall occur on or before October 15November 30, 19981999;
(b) Agent Lender shall have received all searches reflecting the filing of Uniform Commercial Code assignments with respect to the financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsset forth on Schedule 3.1;
(c) Agent Lender shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) a. the Lockbox Agreements;
b. the Concentration Account Agreements;
c. the Disbursement Letter;
(ii) d. the Pay-Off Letter;
(iii) the Suretyship Security Agreement;
(iv) e. the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communicationsf. the Assignment of Notes;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.)g. the Subsidiary Guaranty;
(x) h. the Hale Xxxordination Subsidiary Security Agreement;
(xi) i. the Customer List Escrow Subsidiary Pledge Agreement; and 39and
j. the Assignment of LLC Interests;
(d) Agent Lender shall have received a certificate from the Secretary of Borrower and each Borrower Restricted Subsidiary attesting to the resolutions of such Borrower's the Board of Directors of Borrower or such Restricted Subsidiary, as the case may be, authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower or such Borrower Restricted Subsidiary, as applicable, is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall Lender shal have received copies of the Governing Documents of Borrower and each Borrower's Governing DocumentsRestricted Subsidiary, as amended, modified, or supplemented to the Amendment Closing Date, certified by the Secretary of Borrower or such BorrowerRestricted Subsidiary, as applicable;
(f) Agent Lender shall have received a certificate of status with respect to Borrower and each BorrowerRestricted Subsidiary, dated as within twenty (20) days of a date within a reasonable proximity to the Amendment Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower or such BorrowerRestricted Subsidiary, as applicable, which certificate shall indicate that Borrower or such Borrower Restricted Subsidiary, as applicable, is in good standing in such jurisdiction;
(g) Agent Lender shall have received certificates of status with respect to Borrower and each BorrowerRestricted Subsidiary, each dated as within twenty (20) days of a date within a reasonable proximity to the Amendment Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its Borrower or such Restricted Subsidiary, as applicable, is required to be qualified to do business as a foreign corporation (except where the failure to be duly so qualified or licensed would constitute could not reasonably be expected to have a Material Adverse ChangeEffect), which certificates shall indicate that Borrower or such Borrower Restricted Subsidiary, as applicable, is in good standing in such jurisdictions;
(h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.106.6, the form and substance of which shall be satisfactory to Agent, each Lender, Lender and their respective its counsel;
(i) Agent Lender shall have received the Closing Date Business Plan certified by an officer duly executed certificates of Borrower as being such officer's good faith best estimate title with respect to that portion of the financial performance Collateral that is subject to certificates of Borrower during the period covered therebytitle;
(j) Agent Lender shall have received a Collateral Access Agreement relative evidence satisfactory to Borrower's location in Quincyit that, Massachusettsimmediately after the funding of the initial loans under this Agreement, the interest payment default with respect to the Senior Notes shall be cured;
(k) Agent Lender shall have received opinions an opinion of Borrower's Xxxxxxxxxx Xxxxxxxx LLP, counsel to Borrower and its Restricted Subsidiary, in form and substance satisfactory to Agent and each Lender in their its sole discretion;
(l) Agent and Agent's counsel Lender shall have been provided with a copy received satisfactory reference, credit and background checks on key management of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent Lender shall have received a certificate the results of lien searches against Borrower and its Subsidiaries from an officer all applicable jurisdictions, which shall evidence that there are no Liens of each record against Borrower certifying or any of its Subsidiaries, other than Permitted Liens;
(n) Lender shall have received satisfactory evidence that all tax returns required to be filed such by Borrower have been timely filed and all taxes upon such Borrower and its Subsidiaries or its their respective properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(no) Agent Lender shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are evidence satisfactory to Agent and it that, after making the Lenders;
(o) Agent initial Advance hereunder on the Amendment Closing Date, Borrower shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), on the Amendment Closing Date cash on hand or Excess Availability in form and substance satisfactory an amount equal to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998greater than $3,000,000; and
(rp) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, Lender and their respective its counsel.
Appears in 1 contract
Samples: Credit Agreement (Vista Eyecare Inc)
Conditions Precedent to the Initial Advance. The obligation of the each Lender Group (or any member thereof) to make the initial Advance under the Loans is subject to receipt by the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, Administrative Agent of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase")following, in form and substance satisfactory to the Administrative Agent, with a copy (except for the Notes) for each Lender, acknowledging that Chase's liens :
(a) a loan certificate of the Borrower certifying as to the accuracy of its representations and warranties in the Equipment leased Loan Papers, certifying that no Default or Event of Default has occurred under the terms of this Agreement, and including a certificate of incumbency with respect to each Authorized Officer, and containing a representation that the following items are attached thereto and remain unchanged and valid, except as shown on any such attachments: (i) copies of the Articles of Incorporation of the Borrower and each of the Qwest Material Subsidiaries, certified to be true, complete and correct by the secretary of state of each such Person's respective state of incorporation, (ii) copies of the By-Laws of the Borrower from Chase does not extend to and each of the Accounts generated Qwest Material Subsidiaries and (iii) copies of a certificate of good standing and a certificate of existence for the Borrower in Delaware and each of the Qwest Material Subsidiaries' state of incorporation, and other material states determined by such Equipmentthe Borrower;
(pb) in form and substance acceptable to the Administrative Agent shall have received payment (i) a duly executed and completed Note for each Lender in an amount equal to such Lender's Specified Percentage of all accrued the Commitment and unpaid Lender Group Expenses(ii) a duly executed and completed Conditional Early Release Unlimited Guaranty of the Obligations by the Guarantor;
(qc) a loan certificate of the Borrower certifying that a copy of the resolutions of the Borrower and the Guarantor, authorizing them to execute, deliver and perform this Agreement, the Notes and the other Loan Papers to which each of them is a party is attached and is a true and accurate copy;
(d) copies of all amendments, if any, with respect to the Existing Financing Documentation entered into prior to the Closing Date, with a certificate attached thereto executed by an Authorized Officer of the Borrower certifying that the attached copies are true and accurate and have not been amended, waived or consented to except as set forth therein;
(e) all other Loan Papers to be delivered on the Closing Date duly executed and completed, dated the Closing Date;
(f) opinions addressed to Administrative Agent shall have received on behalf of the Lenders dated the Closing Date of (i) corporate counsel to the Borrower and each Restricted Subsidiary, to the extent applicable, with respect to organizational matters, authorization, execution, etc., (ii) special FCC counsel and/or PUC counsel to the Borrower and the Restricted Subsidiaries, as applicable, in form reasonably acceptable to the Arranging Agents, and (iii) corporate counsel to the Borrower and each Restricted Subsidiary, to the extent applicable, that the execution of this Agreement and the Loan Papers, the borrowing by the Borrower of the Loans (including, without limitation, the use of the proceeds of the Loans) and the performance of all its obligations under the Loan Papers are permitted by the Existing Financing Documentation and that the Loans are pari passu with the Existing Financing;
(g) a duly completed Compliance Certificate evidencing no Default or Event of Default dated as of the Closing Date, and a pro forma compliance certificate dated the Closing Date demonstrating the Borrower's compliance with each of the financial covenants contained in Section 7.01 hereof through December 31, 2000 with supporting projections;
(h) a certificate from an officer of each the Borrower certifying stating that there has been no Material Adverse Change material adverse change in the financial condition condition, business or operations of such the Borrower or the Collateral and its Subsidiaries since July December 31, 1998; and;
(ri) payment to the Administrative Agent, Arranging Agents and Lenders of all fees due and payable as required in accordance with the terms of any Fee Letter or other documents written agreement among the parties;
(j) in form and legal matters substance satisfactory to the Arranging Agents, such other documents, instruments and certificates as the Administrative Agent or any Arranging Agent may reasonably require in connection with the transactions contemplated by this Agreement shall have been deliveredhereby, executedincluding without limitation the status, organization or recorded authority of the Borrower or any Restricted Subsidiary; and
(k) an executed and shall be in form complete copy of that certain First Amended and substance satisfactory to AgentRestated Credit Agreement, each Lenderamong, inter alia, the Borrower, Bank of America, ----- ---- N.A. as Administrative Agent and their respective counselthe lenders party thereto.
Appears in 1 contract
Samples: Credit Agreement (Qwest Communications International Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Lenders to make the initial first Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions condition precedent that on or before the Closing Date:
(a) the Closing Drawdown Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10first Advance, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being following, each dated such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase")day, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:
(a) The Notes payable to each of the Lenders, acknowledging respectively.
(b) This Agreement duly executed by the Borrower and the Guarantors.
(c) The Mortgages on the Bahamas Vessels duly recorded by the Registrar of Bahamian Ships at the Bahamas Maritime Authority in Nassau, Bahamas and the related Deeds of Covenants duly executed by the relevant Guarantor, and the Mortgages on the Bermuda Vessels duly recorded by the Bermuda Registrar of Shipping at the Department of Maritime Administration in Xxxxxxxx, Bermuda, and the related Deeds of Covenants duly executed by the relevant Guarantor.
(d) The Earnings Assignment duly executed by the Guarantors and the Borrower respecting each Vessel together with notices of such assignment.
(e) The Insurance Assignment duly executed by the Guarantors respecting each Vessel together with notices of such assignments.
(f) [not used]
(g) A Certificate of Registration and Transcript of Registrar for the Bahamas Vessels issued by the Registrar of Bahamian Ships at the Bahamas Maritime Authority in Nassau, Bahamas and the Certificate of Registration and Transcript of Register for the Bermuda Vessels issued by the Bermuda Registrar of Shipping at the Department of Maritime Administration in Xxxxxxxx Bermuda, in each case stating that Chase's each Vessel is owned by the respective Guarantor and that there are on record in such offices no mortgages, liens or other encumbrances on each Vessel except the relevant Mortgage.
(h) a Certificate of Compliance in the Equipment leased by form attached hereto as Exhibit F, a Certificate of Solvency for the Borrower from Chase does not extend only in the form attached hereto as Exhibit G, and certified copies of and the Memorandum and Articles of Association and By-Laws, or equivalent documents of each of the Borrower and the Guarantors.
(i) Certified copies of the resolutions of the Boards of Directors of the Borrower and the Guarantors and shareholders consent (if necessary) approving the Loan Documents, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Accounts generated Loan Documents.
(i) A certificate of the secretary or the assistant secretary of the Borrower and the Guarantors certifying the names and true signatures of the officers of such Person, respectively, authorized to sign the Loan Documents and any other documents to be delivered hereunder and (ii) a certificate of the president or vice president (or the chairman or deputy chairman as applicable) of each of the Borrower and the Guarantors stating that (x) the representations and/or warranties contained in Section 4.01 are correct on and as of such Drawdown Date, (y) no Default or Event of Default has occurred and is continuing, or would result from such Advance or from the application of the proceeds therefrom, and (z) and stating that no material adverse change has occurred since December 31, 2004 in the business, operations, properties, prospects or condition (financial or otherwise) of the Borrower or any Guarantor, respectively. It shall be a further condition precedent that on each Drawdown Date, the foregoing statements shall be true and the giving of the Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Equipment;Advance shall constitute a representation and warranty by the Borrower that on each Drawdown Date such statements are true.
(i) A favorable opinion of in-house counsel of the Borrower or of Xxxxxxxx, and the firm of Xxxxxxx, Muething & Xxxxxxx PLL, each acting as special counsel to the Borrower and the Guarantors, substantially in the form of Exhibit F-1 hereto and as to such other matters as any Lender through the Agent may reasonably request, (ii) a favorable opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel to the Borrower and the Guarantors, substantially in the form of Exhibit F-2 hereto and as to such other matters as any Lender through the Agent may reasonably request and (iii) a favorable opinion of Xxxxx & Xxxxxxx, special Bahamas counsel to the Borrower, CDV Ltd. and CDY Ltd. in the form of Exhibit F-3 hereto and as to such other matters as any Lender through the Agent may reasonably request.
(l) (i) a favorable opinion of Xxxxxxx Xxxxxxxx & Xxxxx, special Bermuda counsel to the Agent, as to such other matters as any Lender through the Agent may reasonably request, (ii) a favorable opinion of Messrs. Holland & Knight LLP, special New York counsel to the Agent, as to such matters as any Lender through the Agent may reasonably request and (iii) a favorable opinion of Xxxxx X. Xxxxx, Xxxxxxx & Company, special Bahamas counsel to the Agent, as to such matters any Lender through the Agent may reasonably request.
(m) A report and opinion of an independent insurance broker satisfactory to the Agent (who may be the Borrower’s broker) with respect to insurance on the Vessels together with copies of the certificates of insurance and/or certificates of entry with respect to all insurance required by the relevant Mortgage, showing, among other things, the loss payee clause required by the relevant Mortgage, in each case signed by the respective insurer or the duly authorized broker thereof.
(n) A letter from the Process Agent, referred to and defined in Section 8.06 of this Agreement, in which it agrees to act as Process Agent for the Borrower and the Guarantors and to deliver forthwith to the Borrower and the Guarantors all process received by it as such Process Agent.
(o) Evidence of payment by the Borrower and the Guarantors of all applicable documentary stamp taxes (if any) payable in connection with the authorization, execution and delivery of each of the Loan Documents, and the performance of the transactions hereby or thereby contemplated, or an opinion of counsel that no such taxes are payable.
(p) Evidence that the Borrower has paid to the Agent, and the Agent shall have received payment of all accrued received, (i) the Arrangement Fee, and unpaid Lender Group Expenses;(ii) if applicable, the Agent’s Fee payable to the Agent.
(q) Agent Uniform Commercial Code Financing Statements and other appropriate financing statements, Bermuda Companies Registry filings, or notices and consents, in each case in form and substance acceptable to the Agent, duly executed, if applicable, by the Borrower, the Guarantors or other appropriate Person, and duly filed with the appropriate offices or registers as designated by the Agent, and evidence that the Borrower and the Guarantors shall have received done such other acts requested by the Agent to create a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change perfected security interest or charge having first priority in the financial condition of such Borrower or the Collateral since July 31, 1998; andany collateral covered by a Loan Document.
(r) An undertaking from the relevant classification society as required under Article II, Section 9 of each relevant Deed of Covenants constituting part of each Mortgage.
(s) Evidence of confirmation of class respecting each Vessel issued not earlier than 10 days prior to the first Drawdown Date.
(t) In addition, the following matters shall be true, correct and complete or otherwise satisfactory to the Agent:
(i) since December 31, 2004, there shall have occurred no change in the condition, operations, business, prospects, properties or assets of any Guarantor or of the Borrower, which change in the opinion of the Agent or the Majority Lenders is or will be materially adverse or gives reasonable grounds to conclude that any of the Borrower or any Guarantor may not, or may be unable to, perform or observe its respective obligations under the Loan Documents.
(ii) all approvals, authorizations, consents, notices to or registrations with any governmental authority or agency in connection with the transactions contemplated by the Loan Documents have been obtained and are in full force and effect;
(iii) all corporate or other documents proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded the Loan Documents and the Transaction shall be satisfactory in form and substance satisfactory to Agent, each Lender, of the Lenders and the Agent and their respective counsel; and
(iv) the Agent and the Lenders shall have received such other approvals, opinions, or documents as they may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Chiquita Brands International Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to further conditions precedent that on the satisfaction date of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Datesuch Advance:
(a) the Closing Date shall occur on or before October 15Collection Account has been established pursuant to the Account Control Agreement and the Administrative Agent and the Initial Lender have received a favorable opinion of counsel to the Borrower, 1998reasonably acceptable to the Initial Lender and addressed to the Administrative Agent, the Collateral Custodian and the Lenders, relating thereto;
(b) Agent shall the Borrower has obtained valid ownership interests in the Initial Portfolio Assets and all actions required to be taken or performed under Section 3.04 with respect to the Transfer of such Initial Portfolio Assets have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsbeen taken or satisfied;
(c) Agent shall have received each the Borrower (or the Portfolio Asset Servicer on its behalf) has delivered to the Collateral Custodian (with a copy of any electronic delivery to the following documents, duly executed, and each such document shall be in full force and effect:
Initial Lender) (i) hard copies of any promissory notes, possessory collateral and any original Required Portfolio Documents that the Disbursement Letter;
Borrower requires of the Obligors, (ii) electronic copies of the Pay-Off Letter;
other Required Loan Documents, (iii) the Suretyship Agreement;
Portfolio Asset Checklist pertaining to each Initial Portfolio Asset and (iv) a Custodial and Account Control Agreement as described in clause (a) of the Fee Letterdefinition thereof, in each case at least five Business Days prior to the date of such Advance;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting has delivered to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement Administrative Agent and the other Loan Documents to which such Borrower is Lenders a party Notice of Borrowing and authorizing specific officers of such Borrower to execute the samea Quarterly LTV Certificate as provided in Section 2.02(a);
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to such date occurs during the Closing Date, certified by the Secretary of such BorrowerAvailability Period;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated on and as of a date within a reasonable proximity such date, after giving effect to such Advance and the Closing Datetransactions related thereto, including the use of proceeds thereof, (i) the initial Advance does not exceed the Total Facility Amount and (B) LTV does not exceed 55% (after giving effect to such certificate to be issued by Advance and any Transfer effectuated from the appropriate officer use of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictionproceeds thereof);
(g) Agent shall have received certificates no Unmatured Event of status with respect to each BorrowerDefault, each dated as Event of a date within a reasonable proximity to the Closing Date, Default or Cash Trap Event has occurred and is continuing or would result from such certificates to be issued by the appropriate officer initial Advance or application of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsproceeds therefrom;
(h) Agent shall the representations contained in Sections 4.01 and 4.02 are true and correct in all respects before and after giving effect to such initial Advance and to the application of proceeds therefrom, on and as of such day as though made on and as of such date (or, in the case of any such representation expressly stated to have received been made as of a certificate of insurance, together with the endorsements theretospecific date, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counselsuch specific date);
(i) Agent shall all expenses and fees that are required to be paid hereunder or by the Fee Letters have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;been paid in full; and
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns actions required to be filed such Borrower taken or performed (including the filing of UCC financing statements) to give the Administrative Agent, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in the Initial Portfolio Asset and the Related Portfolio Assets related thereto and the proceeds thereof have been timely filed and all taxes upon such taken or performed. The request for the initial Advance pursuant to this Section 3.02 is deemed a representation by the Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) that the conditions specified in this Section 3.02 have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.met
Appears in 1 contract
Samples: Loan and Servicing Agreement (Exantas Capital Corp.)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (initial Advance by MCI hereunder or any member thereof) to make the initial Advance other Loan Documents, is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counselMCI in its sole option, of each of the following conditions on or before the Closing Dateprecedent:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent a. MCI shall have received all and be satisfied with financing statements (form UCC-1) in form satisfactory for filing and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements recording with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;appropriate Governmental Authorities.
(c) Agent b. MCI shall have received each and be satisfied with certified extracts from the minutes of the following documents, duly executed, and each such document shall be in full force and effect:
meetings or written consents (as applicable) of Borrower’s members and/or managers or board of directors (i) authorizing the Disbursement Letter;
execution, delivery and performance of the Loan Documents, (ii) authorizing borrowings and the Pay-Off Letter;
granting of the security interest provided for herein, (iii) authorizing specific officers to execute and deliver the Suretyship Agreement;
agreements provided for herein, and (iv) attesting to the Fee Letter;incumbency and signatures of such specific officers or directors of such Persons.
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent c. MCI shall have received and be satisfied with a certificate from the Secretary certified copy of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution’s Governing Documents and any amendments thereto, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate good standing showing that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to under the Closing Date, such certificates to be issued by the appropriate officer laws of the jurisdictions in which State of its failure formation and certificates indicating that Borrower has qualified to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower transact business and is in good standing in such jurisdictions;any other state in which the conduct of its business or its ownership of property requires that it be so qualified.
(h) Agent d. MCI shall have received a certificate and be satisfied with MCI’s business, legal and collateral due diligence and received copies of insurancerecord searches including UCC searches, together with tax Lien and litigation searches, fictitious business statement filings, insurance certificates, notices or other similar documents which MCI may require and in such form as MCI may require, in order to reflect, perfect or protect the endorsements thereto, as are required by Section 6.10, priority of MCI’s security interests in the form Collateral and substance in order to fully consummate all of which shall be satisfactory to Agent, each Lender, and their respective counsel;the transactions contemplated under this Agreement.
(i) Agent e. MCI shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate completed reference checks (including Personal credit reports, tax lien and litigation histories) with respect to Borrower, its affiliates and each of the financial performance executive officers, the results of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance which are satisfactory to Agent and each Lender MCI in their its sole discretion;
(l) Agent and Agent's counsel f. Borrower shall have been provided paid all MCI Expenses incurred in connection with a copy of each Carrier the transactions evidenced by this Agreement and all fees payable on the Closing Date in respect of a Material Carrier, the Bell Xxxantic Interconnection accordance with this Agreement, in each case, to the extent then due and each agreement in respect payable as of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;the Closing Date.
(m) Agent g. MCI shall have received and be satisfied with a certificate from an officer fully completed Request for Advance, dated as of each the date of any requested funding, and certified as being true and correct by any one of the Authorized Parties.
h. Borrower certifying shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses.
i. MCI shall have received satisfactory evidence that all tax returns required to be filed such by Borrower have been timely filed and all taxes Taxes upon such Borrower or its respective properties, assets, income, and franchises (including real property taxes taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except 40 such taxes Taxes that are the subject of a Permitted Protest;protest which has been instituted promptly and prosecuted diligently in good faith by Borrower.
(n) Agent j. Evidence satisfactory to MCI that Borrower has obtained insurance policies or binders, with such insurers and in such amounts as may be acceptable to MCI, respecting the tangible Personal property comprising the Collateral and naming MCI as a loss payee on a MCI’s loss payee endorsement acceptable to MCI in its sole discretion.
k. MCI shall have received a certificate from payoff letter executed by each Person holding the Liens securing the Existing Indebtedness, which letter shall include an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated agreement by such Equipment;
(p) Agent Person, upon receipt of a specified amount, to release such Liens, and which letter shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall otherwise be in form and substance satisfactory to AgentMCI.
l. MCI shall have received and be satisfied with a Control Agreement over the Lock Box Account in form reasonably acceptable to MCI, each Lenderfrom Zions Bancorporation, N.A. dba Zions Bank, or any other bank or financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and their respective counselwhich has been approved by MCI in its sole discretion.
Appears in 1 contract
Samples: Loan and Security Agreement (Wellgistics Health, Inc.)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to further conditions precedent that on the satisfaction date of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Datesuch Advance:
(a) the Closing Date shall occur on or before October 15Collection Account has been established pursuant to the Account Control Agreement and the Administrative Agent and the Initial Lender have received a favorable opinion of counsel to the Borrower, 1998reasonably acceptable to the Initial Lender and addressed to the Administrative Agent, the Collateral Custodian and the Lenders, relating thereto;
(b) Agent shall the Borrower has obtained valid ownership interests in the Initial Portfolio Assets and all actions required to be taken or performed under Section 3.04 with respect to the Transfer of such Initial Portfolio Assets have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsbeen taken or satisfied;
(c) Agent shall have received each the Borrower (or the Portfolio Asset Servicer on its behalf) has delivered to the Collateral Custodian (with a copy of any electronic delivery to the following documents, duly executed, and each such document shall be in full force and effect:
Initial Lender) (i) hard copies of any promissory notes, possessory collateral and any original Required Portfolio Documents that the Disbursement Letter;
Borrower requires of the Obligors, (ii) electronic copies of the Pay-Off Letter;
other Required Loan Documents, (iii) the Suretyship Agreement;
Portfolio Asset Checklist pertaining to each Initial Portfolio Asset and (iv) a Custodial and Account Control Agreement as described in clause (a) of the Fee Letterdefinition thereof, in each case at least five Business Days prior to the date of such Advance;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting has delivered to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement Administrative Agent and the other Loan Documents to which such Borrower is Lenders a party Notice of Borrowing and authorizing specific officers of such Borrower to execute the samea Quarterly LTV Certificate as provided in Section 2.02(a);
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to such date occurs during the Closing Date, certified by the Secretary of such BorrowerAvailability Period;
(f) Agent shall have received on and as of such date, after giving effect to such Advance and the transactions related thereto, including the use of proceeds thereof, (i) the initial Advance does not exceed the Total Facility Amount and (B) the Advances Outstanding do not exceed the Borrowing Base and a certificate calculation of status the Borrowing Base as of such date has been included in the Notice of Borrowing with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictionAdvance;
(g) Agent shall have received certificates no Unmatured Event of status with respect to each BorrowerDefault, each dated as Event of a date within a reasonable proximity to the Closing Date, Default or Cash Trap Event has occurred and is continuing or would result from such certificates to be issued by the appropriate officer initial Advance or application of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsproceeds therefrom;
(h) Agent shall the representations contained in Sections 4.01 and 4.02 are true and correct in all respects before and after giving effect to such initial Advance and to the application of proceeds therefrom, on and as of such day as though made on and as of such date (or, in the case of any such representation expressly stated to have received been made as of a certificate of insurance, together with the endorsements theretospecific date, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counselsuch specific date);
(i) Agent shall all expenses and fees that are required to be paid hereunder or by the Fee Letters have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;been paid in full; and
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns actions required to be filed such Borrower taken or performed (including the filing of UCC financing statements) to give the Administrative Agent, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in the Initial Portfolio Asset and the Related Portfolio Assets related thereto and the proceeds thereof have been timely filed and all taxes upon such taken or performed. The request for the initial Advance pursuant to this Section 3.02 is deemed a representation by the Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) that the conditions specified in this Section 3.02 have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.met
Appears in 1 contract
Samples: Loan and Servicing Agreement (ACRES Commercial Realty Corp.)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to further conditions precedent that on the satisfaction date of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Datesuch Advance:
(a) the Closing Date shall occur on or before October 15Collection Account has been established pursuant to the Account Control Agreement and the Administrative Agent and the Initial Lender have received a favorable opinion of counsel to the Borrower, 1998reasonably acceptable to the Initial Lender and addressed to the Administrative Agent, the Collateral Custodian and the Lenders, relating thereto;
(b) Agent shall the Borrower has obtained valid ownership interests in the Initial Portfolio Assets and all actions required to be taken or performed under Section 3.04 with respect to the Transfer of such Initial Portfolio Assets have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;been taken or satisfied; NAI-1528532842v5
(c) Agent shall have received each the Borrower (or the Portfolio Asset Servicer on its behalf) has delivered to the Collateral Custodian (with a copy of any electronic delivery to the following documents, duly executed, and each such document shall be in full force and effect:
Initial Lender) (i) hard copies of any promissory notes, possessory collateral and any original Required Portfolio Documents that the Disbursement Letter;
Borrower requires of the Obligors, (ii) electronic copies of the Pay-Off Letter;
other Required Loan Documents, (iii) the Suretyship Agreement;
Portfolio Asset Checklist pertaining to each Initial Portfolio Asset and (iv) a Custodial and Account Control Agreement as described in clause (a) of the Fee Letterdefinition thereof, in each case at least five Business Days prior to the date of such Advance;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting has delivered to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement Administrative Agent and the other Loan Documents to which such Borrower is Lenders a party Notice of Borrowing and authorizing specific officers of such Borrower to execute the samea Quarterly LTV Certificate as provided in Section 2.02(a);
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to such date occurs during the Closing Date, certified by the Secretary of such BorrowerAvailability Period;
(f) Agent shall have received on and as of such date, after giving effect to such Advance and the transactions related thereto, including the use of proceeds thereof, (i) the initial Advance does not exceed the Total Facility Amount and (B) the Advances Outstanding do not exceed the Borrowing Base and a certificate calculation of status the Borrowing Base as of such date has been included in the Notice of Borrowing with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictionAdvance;
(g) Agent shall have received certificates no Unmatured Event of status with respect to each BorrowerDefault, each dated as Event of a date within a reasonable proximity to the Closing Date, Default or Cash Trap Event has occurred and is continuing or would result from such certificates to be issued by the appropriate officer initial Advance or application of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsproceeds therefrom;
(h) Agent shall the representations contained in Sections 4.01 and 4.02 are true and correct in all respects before and after giving effect to such initial Advance and to the application of proceeds therefrom, on and as of such day as though made on and as of such date (or, in the case of any such representation expressly stated to have received been made as of a certificate of insurance, together with the endorsements theretospecific date, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counselsuch specific date);
(i) Agent shall all expenses and fees that are required to be paid hereunder or by the Fee Letters have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;been paid in full; and
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns actions required to be filed such Borrower taken or performed (including the filing of UCC financing statements) to give the Administrative Agent, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in the Initial Portfolio Asset and the Related Portfolio Assets related thereto and the proceeds thereof have been timely filed and all taxes upon such taken or performed. The request for the initial Advance pursuant to this Section 3.02 is deemed a representation by the Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) that the conditions specified in this Section 3.02 have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.met
Appears in 1 contract
Samples: Loan and Servicing Agreement (ACRES Commercial Realty Corp.)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) each Bank to make the its initial Advance to the Company is subject to the fulfillmentoccurrence of or receipt by the Agent of the following, all in form and substance satisfactory to the satisfaction of Agent, each Lenderand, and their respective counselwhere relevant, of each of the following conditions on or before the Closing Dateexecuted by all appropriate parties:
(a) this Agreement (which includes the Closing Date shall occur on or before October 15, 1998Guaranty);
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsone Note for each Bank;
(c) Agent shall have received each a Notice of Advance with respect to the initial Advance meeting the requirements of SECTION 2.03(A);
(d) the following documents, duly executed, security document (the "SECURITY DOCUMENT") granting a first and each such document shall be in full force prior Lien (except for Liens permitted under SECTION 7.04) or security interest on the Collateral to the Agent for the benefit of itself and effect:the Banks as security for the Obligation;
(i) Pledge Agreements pledging to the Disbursement LetterAgent 100% of the stock owned by the Company or any Subsidiary in any Subsidiaries other than any Foreign Subsidiary, and 65% of the voting stock of such Foreign Subsidiary, accompanied by original stock certificates evidencing such shares and executed stock powers for such certificates; Failure of the Agent to request the information contained in this paragraph prior to the Execution Date shall not preclude it from requesting such information at any time thereafter, in its sole discretion, during the time the Loan is outstanding;
(iie) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from of an officer and of the Secretary secretary or an assistant secretary of the Company certifying, INTER ALIA, (i) true and complete copies of each Borrower attesting to of the articles or certificate of incorporation, as amended and in effect of the Company and each of the Guarantors, the bylaws, as amended and in effect, of the Company and each of the Guarantors and the resolutions of such Borrower's adopted by the Board of Directors of the Company and each of the Guarantor (A) authorizing its the execution, delivery, delivery and performance by the Company and each of its Subsidiaries of this Agreement and the other Loan Documents to which such Borrower it is or will be a party and, in the case of the Company, the Advances to be made hereunder, (B) approving the forms of the Loan Documents to which it is or will be a party and which will be delivered at or prior to the date of the initial Advance and (C) authorizing specific officers of such Borrower the Company and each of its Subsidiaries to execute and deliver the same;
Loan Documents to which it is or will be a party and any related documents, including, any agreement contemplated by this Agreement, (eii) Agent shall the incumbency and specimen signatures of the officers of the Company and each of its Subsidiaries executing any documents on its behalf and (iii) that there has been no change in the businesses or financial condition of the Company which could reasonably be expected to have received copies of each Borrower's Governing Documentsa Material Adverse Effect since May 23, as amended1997, modified, or supplemented to the Closing Date, certified by date upon which the Secretary of such Borrower;IPO occurred.
(f) Agent shall have received a certificate of status with respect to each Borrowerfavorable, dated as of a date within a reasonable proximity signed opinion addressed to the Closing DateAgent and the Banks from Baker & Botts L.L.P., such certificate counsel to be issued by the appropriate officer of Company and the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictionGuarantors;
(gx) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity the payment to the Closing Date, Agent and the Banks of all Fees owing on the Execution Date and all reasonable fees and expenses (including the reasonable fees and disbursements of Andrews & Kurth L.L.P.) agreed upon by such certificates parties to be issued by paid on the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsXxxxxxion Xxxx;
(h) Agent shall have received certificates of appropriate public officials as to the existence, good standing and qualification to do business as a certificate of insurance, together with the endorsements theretoforeign corporation, as are required by Section 6.10applicable, of the form Company and substance its Subsidiaries in each jurisdiction in which the ownership of which shall be satisfactory its properties or the conduct of its business requires such qualifications and where the failure to Agent, each Lender, and their respective counselso qualify would have a Material Adverse Effect;
(i) Agent shall have received copies of a specimen form of service contract between the Closing Date Business Plan certified Company and its Practicing Orthodontists as contemplated by an officer of Borrower as being such officer's good faith best estimate of SECTION 6.03, together with a schedule summarizing the financial performance of Borrower during economic arrangements between the period covered thereby;Company and each said Practicing Orthodontist.
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusettscertificates of insurance as contemplated by SECTION 6.01(H);
(k) UCC searches and other title information reasonably requested by the Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent on the Company and each Lender in their sole discretion;of its Subsidiaries; and
(l) A subordination agreement in the form of EXHIBIT 4.01(L) attached hereto in respect of all Intercompany Indebtedness among the Company and its Subsidiaries ("the Intercompany Subordination Agreement"). The acceptance of the benefits of the initial Credit Event shall constitute a representation and warranty by the Company to the Agent and Agent's counsel each of the Banks that, all of the conditions specified in this Section above shall have been provided with a copy satisfied or waived as of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counseltime.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Bank to make the initial Initial Advance is on the Loan pursuant to this Agreement shall be subject to the fulfillment, to the satisfaction of Agentall of conditions precedent set forth in this Section. In the event that any condition precedent is not so satisfied but Bank elects to make the Initial Advance on the Loan notwithstanding the same, each Lender, such election shall not constitute a waiver of such condition and their respective counsel, of each of the following conditions on or before the Closing Date:condition shall be satisfied prior to any subsequent Advance.
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary All of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document Loan Documents shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Serviceseffect and binding and enforceable obligations of Borrowers and, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower extent that it is a party and authorizing specific officers thereto or otherwise bound thereby, of such Borrower to execute the same;each other Person who may be a party thereto or bound thereby.
(eb) Agent shall have received copies of each Borrower's Governing DocumentsAll actions, as amendedproceedings, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form instruments and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns documents required to be filed such Borrower have been timely filed carry out the borrowings and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the 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 legal counsel for Bank, and said counsel shall have been furnished with such certified copies of actions and proceedings and such other instruments and documents as they shall have requested.
(c) Each Loan Party shall have performed and complied with all agreements and conditions contained in the Loan Documents applicable to it and which are then in effect.
(d) Borrowers shall have delivered; or caused to have been delivered, to Bank or done or caused to have been done, to Bank’s satisfaction each and every of the following items:
(1) This Agreement (together with all addenda, schedules, exhibits, certificates, opinions, financial statements and other documents to be delivered pursuant hereto), the Note, the Deeds of Trust and all other Loan Documents duly executed, acknowledged (if required) and delivered by Borrowers and any Person who is a party thereto.
(2) (i) Copies of resolutions of the board of directors, partners or members or managers, as applicable, of each Loan Party evidencing approval of the borrowing hereunder and the transactions contemplated by the Loan Documents, and authorizing the execution, delivery and performance by each Loan Party of each Loan Document to which it is a party or by which it is otherwise bound, which resolutions shall have been certified by a duly authorized officer, partner or other representative, as applicable, of each Loan Party as of the date of this Agreement as being complete, accurate and in full force and effect; (ii) incumbency certifications of a duly authorized officer, partner or other representative, as applicable, of each Loan Party, in each case, identifying those individuals who are authorized to execute the Loan Documents for and on behalf of such Person(s), respectively, and to otherwise act for and on behalf of such Person(s); (iii) certified copies of each of such Person(s)’ articles of incorporation and bylaws, partnership agreement, certificate of limited partnership, articles of organization, regulations or operating agreement, as applicable, and all amendments thereto; and (iv) certificates of existence, good standing and authority to do business, as applicable, certified substantially contemporaneously with the date of this Agreement, from the state or other jurisdiction of each of such Person(s)’ organization and from every other state or jurisdiction in which such Person is required, under applicable law, to be qualified to do business.
(3) Proof that appropriate security agreements, financing statements, mortgages, deeds of trust, collateral and such additional documents or certificates as may be required by Bank and/or contemplated under the terms of any and every Loan Document, and such other documents or agreements of security and appropriate assurances of validity, perfection and priority of Lien as Bank may request shall have been executed and delivered by the appropriate Persons and recorded or filed in such jurisdictions and such other steps shall be have been taken as necessary to perfect, subject only to Permitted Encumbrances, the Liens granted thereby.
(4) An opinion of Borrowers’ legal counsels, dated as of the date of this Agreement, as to enforceability and authority issues and covering such other matters as are required by Bank and which are otherwise reasonably satisfactory in form and substance satisfactory to AgentBank.
(5) A UCC, each Lendertax lien and judgment lien record search, disclosing no notice of any Liens or encumbrances filed against any of the Mortgaged Property, other than the Permitted Encumbrances.
(6) Evidence of insurance coverage as required by this Agreement and the Deeds of Trust.
(7) The Title Policy (or the Title Company’s unconditional commitment to issue the Title Policy upon recordation of the Deeds of Trust).
(8) An environmental audit report covering the Primary Collateral, in form and content and conducted and prepared by an environmental consultant reasonably acceptable to Bank. Borrowers agree that Bank may disclose the contents of such environmental audit report to Governmental Authorities and Borrowers shall deliver to Bank the written consent to such disclosure from the respective environmental consultant.
(9) Evidence that none of the Primary Collateral is located within any designated flood plain or special flood hazard area (as may be shown on the surveys delivered to Bank or other evidence acceptable to Bank) or, in lieu thereof at Bank’s request, evidence that Borrowers have applied for and received flood insurance covering the insurable Improvements in the maximum coverage available to Bank.
(10) To the extent portions of the Primary Collateral have been platted, full-size, single sheet copies of all recorded subdivision or plat maps of the Primary Collateral approved (to the extent required by Governmental Requirements) by all Governmental Authorities, if applicable, and their respective counsellegible copies of all instruments representing exceptions to the state of title to the Primary Collateral.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The Lender's obligation of the Lender Group (or any member thereof) to make the initial Advance is hereunder shall be subject to the fulfillmentcondition precedent that the Lender shall have received all of the following, each in form and substance satisfactory to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) This Agreement, properly executed by the Closing Date shall occur on or before October 15, 1998;Borrowers.
(b) Agent shall have received all financing statements and fixture filings required The Note, properly executed by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;Borrowers.
(c) Agent shall have received each A true and correct copy of any and all leases pursuant to which any Borrower is leasing any Premises at such Borrower's principal place of business as set forth on Schedule 5.1, together with a landlord's disclaimer and consent with respect to the Parent's lease of the following documentsPremises located at 1522 Xxxxx Xxxxxx, duly executedXxxxxx, and each such document shall be in full force and effect:XX.
(x) Xxxrent searches of appropriate filing offices showing that (i) the Disbursement Letter;
no state or federal tax liens have been filed and remain in effect against any Borrower, (ii) no financing statements or assignments of patents, trademarks or copyrights have been filed and remain in effect against any Borrower except those financing statements and assignments of patents, trademarks or copyrights relating to Permitted Liens or to liens held by Persons who have agreed in writing that upon receipt of proceeds of the Pay-Off Letter;
Advances, they will deliver UCC releases and/or terminations and releases of such assignments of patents, trademarks or copyrights satisfactory to the Lender, and (iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to Lender has duly filed all financing statements filed necessary to perfect the Security Interest, to the extent the Security Interest is capable of being perfected by Sprint Communications;filing.
(ixe) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a A certificate from the Secretary of each Borrower attesting Borrower's Secretary or Assistant Secretary attaching and certifying as to (i) the resolutions of such Borrower's Board of Directors directors and, if required, shareholders, authorizing its the execution, delivery, delivery and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(fii) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment articles of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.incorporation
Appears in 1 contract
Samples: Credit and Security Agreement (Pentastar Communications Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is under the Credit Facility, or causing to be issued any Letter of Credit hereunder shall be subject to the fulfillmentcondition precedent that the Lender shall have received all of the following, each in form and substance satisfactory to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) This Agreement, properly executed on behalf of the Closing Date shall occur on or before October 15, 1998;Borrower.
(b) Agent shall have received The Note, properly executed on behalf of the Borrower.
(c) A true and correct copy of any and all financing statements leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and fixture filings required consent with respect to each such lease; and with respect to any and all of the Premises owned by the Lender GroupBorrower a Mortgagee's disclaimer as to all such Premises which are subject to a Mortgage, deed of trust or other lien.
(d) A Collateral Account Agreement, duly executed by the Borrower and Norwest Bank Arizona, N.A. pursuant to which the Borrower and Norwest Bank Arizona, N.
A. establish a depository account (the "Collateral Account") in the name of and under the sole and exclusive control of the Lender, from which such institution agrees to transfer finally collected funds to the Lender for application to the Advances.
(e) A Lockbox Agreement, duly executed by the Borrower and an institution acceptable to the Lender, pursuant to which the Borrower agrees to maintain and direct account debtors to make payment to, and such institution agrees to maintain and process payments received in, a lockbox for the benefit of the Lender (the "Lockbox"), from which Lockbox such institution shall transfer funds to the Collateral Account.
(f) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the Borrower, and Agent shall have searches reflecting the filing of its (ii) no financing statements with have been filed and remain in effect against the Borrower, except those financing statements relating to liens permitted pursuant to Section 7.1 hereof and those financing statements filed by the Lender, and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interests granted hereunder, to the extent the Security Interests are capable of being perfected by filing.
(g) A certificate of the Secretary or an Assistant Secretary of the Commonwealth of Massachusetts and the City Clerk of QuincyBorrower, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
certifying as to (i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such the directors and, if required, the shareholders of the Borrower's Board of Directors , authorizing its the execution, delivery, delivery and performance of this Agreement and the other Security Documents, (ii) the articles of incorporation and bylaws of the Borrower, and (iii) the signatures of the officers or agents of the Borrower authorized to execute and deliver this Agreement, the Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documentsother instruments, as amendedagreements and certificates, modifiedincluding Advance requests, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer on behalf of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Appears in 1 contract
Samples: Credit and Security Agreement (Crager Industries Inc)
Conditions Precedent to the Initial Advance. The obligation of the each Lender Group (or any member thereof) to make its initial Advance under the Credit Facility is subject to and conditional upon the fulfilment of the following conditions precedent at the time the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Datemade available:
(a) no Default or Event of Default has occurred or is continuing or would arise immediately after giving effect to or as a result of the Closing Date shall occur on or before October 15, 1998Advance;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsAdvance will not violate any Applicable Law;
(c) Agent shall have received the representations and warranties of the Credit Parties contained in Article 5 and in each of the following documentsother Credit Documents are true and correct on the date of the Advance as if such representations and warranties were made on that date;
(d) the conditions precedent in Section 4.1 have been satisfied;
(e) the Administrative Agent has received, duly executed, in form and substance and dated a date satisfactory to the Lenders and their counsel and in sufficient quantities for each such document shall be in full force and effectLender:
(i) an executed copy of the Disbursement LetterCredit Documents (other than this Agreement);
(ii) a certified copy of the Pay-Off LetterIP Credit Documents;
(iii) (i) all documents, instruments, financing statements and notices of security shall have been properly registered, recorded and filed in all places which, (ii) searches shall have been conducted in all jurisdictions which, and (iii) deliveries of all consents, approvals, acknowledgements, confirmations, undertakings, subordinations, discharges, waivers, directions, negotiable documents of title and other documents and instruments to the Suretyship AgreementAdministrative Agent shall have been made which, in each case, are desirable or required to make effective the Security and to ensure the perfection and the first-ranking priority of such Security subject only to Permitted Liens which rank by law in priority;
(iv) an executed no interest letter in favour of the Fee LetterAdministrative Agent and the Lenders from the lenders under the IP Credit Agreement, in respect of the Restricted Account and the Restricted Account Collateral;
(v) certified copies of (i) the Agents' Side Lettercharter documents and by-laws of each Credit Party, (ii) all resolutions of the Board of Directors or shareholders, as the case may be, of each Credit Party approving the borrowing and other matters contemplated by this Agreement and the other Credit Documents, and (iii) a list of the officers and directors authorized to sign agreements together with their specimen signatures;
(vi) a certificate of status, compliance or like certificate with respect to each Credit Party issued by the Intercompany Subordination Agreementappropriate Governmental Authority of the jurisdiction of its incorporation;
(vii) an opinion of counsel to each Credit Party addressed to the Stock Pledge AgreementLenders and the Administrative Agent relating to the status and capacity of such Credit Party, the due authorization, execution and delivery and the validity and enforceability of the Credit Documents to which such Credit Party is a party, and perfection of the Security granted pursuant to the Security Agreement to which such Credit Party is a party in the jurisdiction of incorporation of such Credit Party, in the Province of Alberta and in any other relevant jurisdiction, and such other matters as the Administrative Agent may reasonably request;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to approvals, acknowledgments and consents of all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; Governmental Authorities and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to Persons which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior obtained by any Credit Party in order to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with complete the transactions contemplated by this Agreement shall and to perform its obligations under any Credit Document to which it is a party;
(ix) the documentation and other information that is required by the Administrative Agent and the Lenders pursuant to Anti-Terrorism Laws and applicable “know your client” laws and regulations;
(x) such other certificates and documentation as the Administrative Agent may reasonably request;
(f) the Lenders have completed, to their satisfaction, a due diligence review of the Credit Parties including a review of the capital structure of the Borrower and the IP Credit Documents;
(g) the Lenders are satisfied that, since December 31, 2018, there has not been an event or circumstance which could reasonably be expected to result in a Material Adverse Effect;
(h) all fees and other amounts then payable under the Credit Documents have been deliveredpaid in full; and
(i) the initial Advance is made by the Lenders prior to March 1, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel2020.
Appears in 1 contract
Samples: Credit Agreement
Conditions Precedent to the Initial Advance. The obligation of the each Lender Group (or any member thereof) to make its initial Advance under the Credit Facility is subject to and conditional upon the fulfilment of the following conditions precedent at the time the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Datemade available:
(a) no Default or Event of Default has occurred or is continuing or would arise immediately after giving effect to or as a result of the Closing Date shall occur on or before October 15, 1998Advance;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsAdvance will not violate any Applicable Law;
(c) Agent shall have received the representations and warranties of the Credit Parties contained in Article 5 and in each of the following documentsother Credit Documents are true and correct on the date of the Advance as if such representations and warranties were made on that date;
(d) the conditions precedent in Section 4.1 have been satisfied;
(e) the Administrative Agent has received, duly executed, in form and substance and dated a date satisfactory to the Lenders and their counsel and in sufficient quantities for each such document shall be in full force and effectLender:
(i) an executed copy of the Disbursement LetterCredit Documents (other than this Agreement);
(ii) a certified copy of the Pay-Off LetterIP Credit Documents;
(i) all documents, instruments, financing statements and notices of security shall have been properly registered, recorded and filed in all places which, (ii) searches shall have been conducted in all jurisdictions which, and (iii) deliveries of all consents, approvals, acknowledgements, confirmations, undertakings, subordinations, discharges, waivers, directions, negotiable documents of title and other documents and instruments to the Suretyship AgreementAdministrative Agent shall have been made which, in each case, are desirable or required to make effective the Security and to ensure the perfection and the first-ranking priority of such Security subject only to Permitted Liens which rank by law in priority;
(iv) an executed no interest letter in favour of the Fee LetterAdministrative Agent and the Lenders from the lenders under the IP Credit Agreement, in respect of the Restricted Account and the Restricted Account Collateral;
(v) certified copies of (i) the Agents' Side Lettercharter documents and by-laws of each Credit Party, (ii) all resolutions of the Board of Directors or shareholders, as the case may be, of each Credit Party approving the borrowing and other matters contemplated by this Agreement and the other Credit Documents, and (iii) a list of the officers and directors authorized to sign agreements together with their specimen signatures;
(vi) a certificate of status, compliance or like certificate with respect to each Credit Party issued by the Intercompany Subordination Agreementappropriate Governmental Authority of the jurisdiction of its incorporation;
(vii) an opinion of counsel to each Credit Party addressed to the Stock Pledge AgreementLenders and the Administrative Agent relating to the status and capacity of such Credit Party, the due authorization, execution and delivery and the validity and enforceability of the Credit Documents to which such Credit Party is a party, and perfection of the Security granted pursuant to the Security Agreement to which such Credit Party is a party in the jurisdiction of incorporation of such Credit Party, in the Province of Alberta and in any other relevant jurisdiction, and such other matters as the Administrative Agent may reasonably request;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to approvals, acknowledgments and consents of all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; Governmental Authorities and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to Persons which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior obtained by any Credit Party in order to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with complete the transactions contemplated by this Agreement shall and to perform its obligations under any Credit Document to which it is a party;
(ix) the documentation and other information that is required by the Administrative Agent and the Lenders pursuant to Anti-Terrorism Laws and applicable “know your client” laws and regulations;
(x) such other certificates and documentation as the Administrative Agent may reasonably request;
(f) the Lenders have completed, to their satisfaction, a due diligence review of the Credit Parties including a review of the capital structure of the Borrower and the IP Credit Documents;
(g) the Lenders are satisfied that, since December 31, 2018, there has not been an event or circumstance which could reasonably be expected to result in a Material Adverse Effect;
(h) all fees and other amounts then payable under the Credit Documents have been deliveredpaid in full; and
(i) the initial Advance is made by the Lenders prior to March 1, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel2020.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Bank to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Bank and their respective its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15August 12, 19982002;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent Bank shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;Revolver Note; and
(ii) Documentation evidencing the Pay-Off Lettertermination by Existing Lender of its Liens in and to the Assets of Borrower or an agreement satisfactory to Bank that such Liens will be terminated;
(iiic) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent Bank shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's its Board of Directors authorizing its the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower it is a party and authorizing specific officers of such Borrower to execute the same;
(ed) Agent Bank shall have received copies a copy of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(fe) Agent Bank shall have received a certificate of status with respect to each Borrower, from Borrower dated as within 10 days of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(gf) Agent Bank shall have received certificates of status with respect to each Borrower, each from Borrower dated as within 15 days of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such applicable jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(rg) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, Bank and their respective its counsel.
Appears in 1 contract
Samples: Loan Agreement (Ess Technology Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Lenders to make the initial Advance Advances hereunder is subject to the fulfillmentprior satisfaction (or waiver in writing), to the satisfaction of as determined by Agent, each Lender, and their respective counsel, of each of the following conditions on or before precedent as of the Closing date hereof and to the continuing satisfaction of those conditions precedent as of each applicable Advance Date:
(a) For the Closing Date shall occur on or before October 15Initial Advance, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase")hereof, in form and substance satisfactory to the Agent, on behalf of the Lenders:
(i) for each Lender, acknowledging that Chase's liens a promissory note in the Equipment leased form of the Note in the principal amount of such Lxxxxx’s Commitment Amount, duly executed by the Borrower from Chase does not extend and payable to such Lender (such promissory notes collectively representing the Accounts generated by such Equipmentaggregate amount of the Term Loan);
(pii) Agent shall have received payment of all accrued this Agreement, duly executed by the Borrower and unpaid Lender Group Expensesthe Guarantors;
(qiii) a certificate of a Responsible Officer of each Loan Party certifying the resolutions of the manager or others performing similar functions with respect to such Loan Party, as applicable, approving and authorizing the execution, delivery, and performance by such Loan Party of each Loan Document, the notices and other documents to be delivered by such Loan Party pursuant to each Loan Document to which it is a party, and the transactions contemplated thereunder;
(iv) the duly executed Guarantees;
(v) the duly executed Borrower Pledge and Security Agreement;
(vi) the duly executed Guarantor Pledge and Security Agreements;
(vii) a duly executed Warrant issued by the Borrower to the Agent in accordance with Section 2.3 (for each Advance);
(viii) duly completed UCC financing statements, as applicable and where appropriate, fixture filings, with respect to all Collateral of the Borrower and the Guarantors, for filing in all jurisdictions as may be necessary or, in the opinion of the Agent, desirable to perfect the security interests created in such Collateral pursuant to the applicable Loan Documents;
(ix) evidence of insurance and loss payee endorsements required hereunder and certificates of insurance policies and/or endorsements naming Agent as additional insured or loss payee, as applicable;
(x) both before and after giving effect to the Initial Advance, no Default or Event of Default shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998occurred and be continuing; and
(rxi) all such other documents and legal matters in connection instruments with respect to the transactions contemplated by this Agreement hereby as the Agent may reasonably request.
(b) For the Advance, the Borrower shall have been deliveredsent to the Agent by the applicable Advance Date:
(i) a written description of intended use of the proceeds of such Advance together with an accounting of the use of proceeds from the prior Advances (each such notice, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lendera “Use of Proceeds Notice”), and their respective counselthe Agent shall have approved such notice in its sole discretion;
(ii) both before and after giving effect to each such Advance, no Default or Event of Default shall have occurred and be continuing; and
(iii) such other documents and instruments with respect to the transactions contemplated hereby as the Agent may reasonably request.
Appears in 1 contract
Samples: Loan and Security Agreement (Connexa Sports Technologies Inc.)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is under the Secured Loan Facility shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent condition precedent that Lender shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrowerfollowing, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent Lender except to the extent a condition is waived in writing by Lender:
(a) This Agreement and the Secured Note, each Lender in their sole discretionproperly executed on behalf of Borrower;
(lb) Agent and Agent's counsel Borrower shall have provided evidence satisfactory to Lender of the existence and amount of the Tax Refund and that the IRS Refund has not been provided paid and is not subject to offset by the United States Internal Revenue Service or other agency of the United States Government; and
(c) Confirmation of filing of such Uniform Commercial Code financing statements perfecting the security interest granted by Borrower in the Tax Refund and the filing of such notices with the Internal Revenue Service regarding the Tax Refund as Lender determines;
(d) A current certificate issued by the Secretary of State of the State of Texas, certifying that Borrower is in good standing under the laws of the State of Texas and a copy current Certificate of Account Status issued by the Texas Comptroller of Public Accounts confirming no franchise tax reports or payments are due;
(e) A completed Draw Request;
(f) Copies of Parent's Article of Incorporation and By-laws and resolutions duly adopted by the Board of Directors of each Carrier Agreement in respect Borrower authorizing execution, delivery and performance of a Material Carrierthis Agreement, the Bell Xxxantic Interconnection AgreementSecured Notes and the Obligations as certified by the Secretary of each Borrower;
(g) The opinion letter of Jenkens & Gilchrist, and each agreement in respect of any Indefeasible Right to Use granted counsel to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreementon substantially the txxxx xxx forth in Exhibit B attached hereto;
(mh) Agent shall have received a certificate from an officer Confirmation that the Tax Refund is subject to no Liens other than in favor of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent Lender and the Senior Lenders;
(oi) Agent All of the conditions to funding set forth and described in the Term Sheet shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each been satisfied or waived by Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(pj) Agent shall have received payment Execution by Lender of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in intercreditor agreement with the financial condition of such Borrower or the Collateral since July 31, 1998Senior Lenders on terms acceptable to Lender; and
(rk) all Delivery of such other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivereddocuments, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lenderagreements, and their respective counselinstruments, and the performance by Borrower of such other actions, as may be determined by each of the Lenders in its discretion.
Appears in 1 contract
Samples: Loan and Security Agreement (Travis Boats & Motors Inc)
Conditions Precedent to the Initial Advance. The obligations of each Lender under this Agreement and the obligation of the each Lender Group (or any member thereof) to make the initial Initial Advance is shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions precedent that on or before the Closing Date:
(a) the Closing Date All terms, conditions and documentation in connection with this amendment and restatement shall occur on or before October 15, 1998;be acceptable to Lenders.
(bc) Each Lender shall have received a Certificate from an Authorized Officer stating that no material adverse change in the business, assets, prospects, or financial condition of Company and its Subsidiaries since the December 31, 1996 financial statements provided to Lenders. Administrative Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, financial information regarding Company and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed Subsidiary of Company requested by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39it.
(d) Agent Each Lender shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance an executed copy of this Agreement and the other Loan Documents to which such Borrower is a party its respective Notes, duly completed and authorizing specific officers of such Borrower to execute the same;
(e) Agent correct. Lenders shall have received copies of each Borrower's Governing Documentsthe Fee Letters signed by Company, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer applicable. Each of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel following shall have been provided with a copy delivered to Administrative Agent on behalf of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to Administrative Agent, Special Counsel and each Lender. The Guaranty Agreement executed by each Guarantor and a Subordination Agreement executed by each payee of an Intercompany Note.
(e) Company shall have delivered to Administrative Agent a Certificate, acknowledging dated the Closing Date, executed by an Authorized Officer, certifying that, to such Authorized Officer's knowledge, (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in Article IV hereof are true and correct in all material respects, and (iii) Company and each Subsidiary of Company has complied with all agreements and conditions to be complied with by it in all material respects under the Loan Papers by such date.
(f) Company and each Guarantor shall have each delivered to Administrative Agent on behalf of Lenders a Secretary's Certificate, dated the Closing Date, certifying (i) that Chase's liens attached copies of the certificates of organization certified by the Secretary of States of the appropriate states, and bylaws are true and complete, and in full force and effect, without amendment except as shown, and (ii) that a copy of the Equipment leased by Borrower from Chase does resolutions authorizing execution and delivery of this Agreement and any Loan Papers, as appropriate, are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not extend been amended, modified, or revoked, and constitute all resolutions adopted with respect to this loan transaction. Administrative Agent and Lenders may conclusively rely on the certificate delivered pursuant to this subsection until they receive notice in writing to the Accounts generated by such Equipment;contrary.
(pg) Administrative Agent shall have received payment an opinion or opinions of all accrued counsel to Company and unpaid Lender Group Expenses;its Subsidiaries, dated the Closing Date, acceptable to Lenders and otherwise in form and substance satisfactory to Lenders and Special Counsel, with respect to this loan transaction and otherwise, including, without limitation, opinions (i) to the valid and binding nature of the Loan Papers, (ii) to the power, authorization and corporate matters of each such Person taken in connection with the transactions contemplated by the Loan Papers, (iii) that the execution, delivery and performance by Company and the Subsidiaries of Company of the respective Loan Papers does not violate any of the terms of Company's or any such Subsidiary's agreements, and (iv) to such other matters as are reasonably requested by Special Counsel.
(qh) Administrative Agent shall have received a certificate from an officer received, on behalf of Lenders, each Borrower certifying that there has been no Material Adverse Change of the -38- following, in the financial condition of such Borrower or the Collateral since July 31, 1998; andform and substance satisfactory to Administrative Agent and Special Counsel:
(ri) evidence that all other documents proceedings of Company and legal matters its Subsidiaries taken in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be reasonably satisfactory in form and substance to Lenders and Special Counsel; and each Lender shall have received copies of all documents or other evidence which Lenders or Special Counsel may reasonably request in connection with this facility, including without limitation the resolutions of the Board of Directors of Company and each Subsidiary, and the requisite authorizations of all other Persons necessary to authorize the transactions contemplated herein, certified to be true and correct by an Authorized Officer;
(ii) payment of all fees, costs and expenses (including, without limitation, attorneys' fees of Special Counsel and the Structuring Fee due to be paid on or through the Closing Date); and
(iii) a Compliance Certificate computed after giving effect to the Initial Advance.
(i) All corporate proceedings of Company and its Subsidiaries taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall be satisfactory in form and substance to Agent, each Lender, . Administrative Agent and their respective counseleach Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
Appears in 1 contract
Samples: Credit Agreement (Franchise Finance Corp of America)
Conditions Precedent to the Initial Advance. The obligation of the each Lender Group (or any member thereof) to make the its initial Advance on the Closing Date is subject to and conditional upon the fulfillment, prior fulfilment of the following conditions to the satisfaction of the Agent, each Lender, the Lenders and their respective counsel, of each of the following conditions on or before the Closing DateLenders’ Counsel:
11.1.1 On or prior to noon (aMontreal time) on the Closing Drawdown Date shall occur on or before October 15of such initial Advance, 1998;
(b) the Agent shall have received all financing statements from the Borrower, in sufficient quantities to provide one copy to each Lender and fixture filings required by to the Lender GroupAgent, the following, each dated as of a date satisfactory to the Lenders and in form and substance satisfactory to the Lenders and the Lenders’ Counsel:
11.1.1.1 this Agreement duly executed by Borrowerthe Obligors, the Lenders and Agent shall have searches reflecting the filing of its financing statements with the Secretary Agent;
11.1.1.2 certified copies of the Commonwealth constating or organization documents and by-laws of Massachusetts each Obligor and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each all documents and resolutions evidencing necessary corporate or limited liability company action of the following documents, duly executed, Obligors approving and each such document shall be in full force and effect:
(i) authorizing the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, delivery and performance of this Agreement and the other Loan Documents to which such Borrower it is a party and evidencing any other necessary corporate action with respect to this Agreement, the other Loan Documents and the instruments, certificates or other documents contemplated herein, and approving and authorizing specific officers of such Borrower the manner in which and by whom the foregoing documents are to execute the samebe executed and delivered;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received 11.1.1.3 a certificate of status status, compliance, attestation, good standing or like certificate with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be Obligor issued by the appropriate officer government officials of the jurisdiction of organization of such Borrowerits incorporation and each jurisdiction in which it carries on business, which certificate shall indicate that such Borrower is in good standing in such jurisdictionif applicable;
(g) Agent shall have received certificates 11.1.1.4 copies of status any and all necessary governmental, regulatory and other third party authorizations and approvals required with respect to each Borrower, each dated as this Agreement and the other Loan Documents;
11.1.1.5 a certificate of a date within a reasonable proximity Responsible Officer of each Obligor certifying the names and true signature of the officers of each Obligor authorized to sign this Agreement, the Closing Date, such other Loan Documents and any other documents or certificates to be issued by the appropriate officer of the jurisdictions in which its failure delivered pursuant to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsthis Agreement;
(h) Agent shall have received 11.1.1.6 a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate a Responsible Officer of the financial performance of Borrower during to the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincyeffect that, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's his knowledge there after reasonable inquiry, all representations and warranties of each Obligor set forth in ARTICLE 2 hereof and in each other Loan Document are true in all material respects as of the initial Drawdown Date and no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders Default or Event of Default has occurred and are satisfactory to Agent and the Lendersis continuing hereunder;
(o) Agent shall have received 11.1.1.7 a letter from Chase Equipment LeasingCompliance Certificate confirming compliance by the Borrower, Inc. ("Chase")on a pro forma basis, in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters ratios set forth in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.Section 12.2;
Appears in 1 contract
Samples: Credit Agreement (Alithya Group Inc)
Conditions Precedent to the Initial Advance. The Lender's obligation of the Lender Group (or any member thereof) to make the initial Advance is hereunder shall be subject to the fulfillment, to condition precedent that the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent Lender shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrowerfollowing, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;the Lender:
(la) Agent This Agreement, properly executed by the Borrower.
(b) The Note, properly executed by the Borrower.
(c) A true and Agent's counsel shall have been provided correct copy of any and all leases pursuant to which the Borrower is leasing the Premises, together with a copy of landlord's disclaimer and consent with respect to each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection such lease.
(d) The Collateral Account Agreement, properly executed by the Borrower and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;Norwest Bank Colorado.
(me) Agent shall have received a The Lockbox Agreement, properly executed by the Borrower and Norwest Bank Colorado.
(f) The Patent Security Agreement, properly executed by the Borrower.
(g) The Copyright Security Agreement, properly executed by the Borrower.
(h) A Subordination Agreement, properly executed by Willxxx X. Xxxlds and acknowledged by the Borrower.
(i) A certificate from of an officer of each Borrower confirming, in his capacity as an officer of the Borrower, the representations and warranties set forth in Article V.
(j) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the Borrower, (ii) no financing statements or assignments of patents, trademarks or copyrights have been filed and remain in effect against the Borrower except those financing statements and assignments of patents, trademarks or copyrights relating to Permitted Liens or to liens held by Persons who have agreed in writing that upon receipt of proceeds of the Advances, they will deliver UCC releases and/or terminations and releases of such assignments of patents, trademarks or copyrights satisfactory to the Lender, and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interest, to the extent the Security Interest is capable of being perfected by filing.
(k) A certificate of the Borrower's Secretary or Assistant Secretary certifying as to (i) the resolutions of the Borrower's directors and, if required, shareholders, authorizing the execution, delivery and performance of the Loan Documents, (ii) the Borrower's certificate of incorporation and bylaws, and (iii) the signatures of the Borrower's officers or agents authorized to execute and deliver the Loan Documents and other instruments, agreements and certificates, including Advance requests, on the Borrower's behalf.
(l) A current certificate issued by the Secretary of State of Delaware, certifying that the Borrower is in compliance with all tax returns required applicable organizational requirements of the State of Delaware.
(m) Evidence that the Borrower is duly licensed or qualified to be filed such Borrower have been timely filed transact business in Colorado and all taxes upon other jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such Borrower licensing or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;qualification necessary.
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Audited financial statement for Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operatesfiscal year ending March 31, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;1999.
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), A separate support agreement in form and substance satisfactory to each favor of the Lender, acknowledging that Chase's liens properly executed by each of Gary Xxxxxxx xxx Doug Xxxxxxxx, xxch in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;his personal capacity.
(p) Agent shall have received payment An opinion of all accrued and unpaid Lender Group Expenses;counsel to the Borrower, addressed to the Lender.
(q) Agent shall have received Certificates of the insurance required hereunder, with all hazard insurance containing a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change lender's loss payable endorsement in the financial condition of such Borrower or Lender's favor and with all liability insurance naming the Collateral since July 31, 1998; andLender as an additional insured.
(r) Payment of the fees and commissions due through the date of the initial Advance under Section 2.3 and expenses incurred by the Lender through such date and required to be paid by the Borrower under Section 9.6, including all other documents and legal matters expenses incurred through the date of this Agreement.
(s) Evidence that the Borrower will have at least $200,000 in connection with Availability following the transactions contemplated by this Agreement shall have been deliveredinitial Advance, executed, or recorded and which shall be in form and substance satisfactory excess of the amount sufficient to Agent, each Lender, and their respective counselpay all of the Borrower's trade payables that are more than 60 days past due.
(t) Such other documents as the Lender in its reasonable discretion may require.
Appears in 1 contract
Samples: Credit and Security Agreement (Chaparral Network Storage Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is under the Credit Facility shall be subject to the fulfillmentcondition precedent that the Lender shall have received all of the following, each in form and substance satisfactory to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) This Agreement, properly executed on behalf of the Closing Date shall occur on or before October 15, 1998;Borrower.
(b) Agent shall have received The Notes, properly executed on behalf of the Borrower.
(c) A true and correct copy of any and all financing statements leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and fixture filings required by the Lender Groupconsent with respect to each such lease.
(d) A Collateral Account Agreement, duly executed by Borrowerthe Borrower and a financial institution acceptable to the Lender, pursuant to which the Borrower and the institution establish a depository account (the "Collateral Account") in the name of and under the sole and exclusive control of the Lender, from which such institution agrees to transfer finally collected funds to the Lender for application as provided in Section 6.10 hereof.
(e) A Lockbox Agreement, duly executed by the Borrower and an institution acceptable to the Lender, pursuant to which the Borrower agrees to maintain and direct account debtors to make payment to, and Agent such institution agrees to maintain and process payments received in, a lockbox for the benefit of the Lender (the "Lockbox"), from which Lockbox such institution shall have searches reflecting transfer funds to the filing Collateral Account.
(f) A certificate of its financing statements with the Secretary or an Assistant Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, Borrower and each such document shall be in full force and effect:
Guarantor, certifying as to (i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such the directors authorizing, in the case of the Borrower's Board of Directors authorizing its , the execution, delivery, delivery and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers Documents, and, in the case of each Guarantor, the Guaranty of such Guarantor and, if such Guaranty is secured, the Security Agreement of such Guarantor, (ii) the articles of incorporation and bylaws of the Borrower or such Guarantor, and (iii) the signatures of the officers or agents of the Borrower or such Guarantor authorized to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10and deliver this Agreement, the form other Loan Documents and substance of which shall be satisfactory to Agentother instruments, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; agreements and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Appears in 1 contract
Samples: Credit and Security Agreement (Shop at Home Inc /Tn/)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Initial Advance hereunder is subject to the fulfillment, to the satisfaction of Agent, each Lender, Lender and their respective its counsel, of each of the following conditions on or before the Closing Date:; provided, however, that Lender, in its sole and absolute discretion, may waive any of the following conditions, except the entering of the Interim Order by the Bankruptcy Court.
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement LetterThis Agreement executed by Borrower and Lender;
(ii) the Pay-Off LetterThe Stock Pledge Agreement executed by Borrower, Lender and Harrxx Xxxst and Savings Bank;
(iii) The Financing Statements executed by Borrower and Lender.
(b) The Bankruptcy Court shall have entered the Suretyship AgreementInterim Order;
(ivc) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent Lender shall have received a certificate from the Secretary copies of each Borrower attesting to the resolutions of such Borrower's Board the board of Directors directors of Borrower approving and authorizing its the execution, delivery, delivery and performance by Borrower of this Agreement and the other Loan Documents to which such Borrower is a party be delivered hereunder, and authorizing specific officers the Loan, certified as of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified Date by the Secretary or an Assistant Secretary of such Borrower;
(fd) Agent Lender shall have received a certificate of status with respect the Secretary or Assistant Secretary of Borrower certifying the names and true signatures of the officers of Borrower authorized to each execute, deliver and perform, as applicable, this Agreement, the Stock Pledge Agreement and all other Loan Documents to be delivered hereunder and Lender shall have received a good standing certificate for Borrower from the Secretary of State of Delaware; and
(e) Borrower, dated as of a date within a reasonable proximity to from the Initial Advance on the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates paid to Lender Fifty Thousand and No/100 Dollars ($50,000) as an initial retainer, for any and all Lender Costs incurred by Lender in conducing its due diligence, document preparation and other necessary investigations and analyses relating to the Loan. To the extent that Lender Costs relating to the foregoing exceed $50,000, Borrower shall pay Lender such excess amount within thirty (30) days of status with respect Lender's written notice to each Borrower. In addition, each dated as Initial Advance made after July 17, 1997, shall require a Notice of a date within a reasonable proximity Advance to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative pursuant to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselSection 2.2.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The Lender’s obligation of the Lender Group (or any member thereof) to make the initial Advance is shall be subject to the fulfillment, to condition precedent that the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent Lender shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrowerfollowing, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent the Lender:
(a) This Agreement, properly executed by the Borrower.
(b) The Note, properly executed by the Borrower.
(c) The other Loan Documents, properly executed by the parties thereto.
(d) An executed borrowing base certificate and an executed compliance certificate.
(e) A true and correct copy the Leases together with a Landlord’s Waiver executed by the Landlord under each such Lease.
(f) Stock Certificates evidencing the shares pledged under the Stock Pledge Agreement, together with duly executed Stock Powers.
(g) An owner’s and encumbrancer’s report with respect to the real property described in the Negative Pledge Agreement, dated as of the date of closing, together with evidence that the Negative Pledge Agreement has been properly recorded against such real property and that there are no liens or encumbrances recorded against such real property which are prior to the Negative Pledge Agreement.
(h) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the Borrower, (ii) no financing statements or assignments of patents, trademarks or copyrights have been filed and remain in effect against the Borrower except those financing statements and assignments of patents, trademarks or copyrights relating to Permitted Liens or to liens held by Persons who have agreed in writing that upon receipt of proceeds of the Note or of any other payments in connection with the acquisition documents, they will deliver UCC releases and/or terminations and releases of such assignments of patents, trademarks or copyrights satisfactory to the Lender, and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interest, to the extent the Security Interest is capable of being perfected by filing.
(i) A certificate of the Borrower’s Secretary or Assistant Secretary certifying as to (i) the resolutions of the directors and, if required, shareholders of the Borrower authorizing the execution, delivery and performance of the Loan Documents, (ii) the Articles of Incorporation and Bylaws of the Borrower and (iii) the signatures of the officers or agents of the Borrower authorized to execute and deliver the Loan Documents, and other instruments, agreements and certificates, including, with respect to the Borrower, Advance requests.
(j) Current certificates issued by the Secretaries of State of Minnesota certifying that each Borrower are in their sole discretion;compliance with all applicable organizational and/or registration requirements of the States of Minnesota.
(k) Evidence that each Borrower are duly licensed or qualified to transact business in all jurisdictions where the failure to be so licensed would have a Material Adverse Effect on the Borrower, as the case may be.
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;Payoff letter(s) from all appropriate lenders.
(m) Agent shall have received a certificate from an officer An opinion of each counsel to the Borrower certifying that all tax returns required addressed to be filed such Borrower have been timely filed and all taxes upon such Borrower or its propertiesthe Lender, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior addressed to delinquency, except 40 such taxes that are the subject of a Permitted Protest;Lender.
(n) Agent shall have received Certificates of insurance, with all hazard insurance containing a certificate from lender’s loss payable endorsement in the Lender’s favor and with all liability insurance naming the Lender as an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;additional insured.
(o) Agent shall have received a letter from Chase Equipment LeasingProjected balance sheets, Inc. ("Chase")statements of cash flow and income statements for the remainder of the Borrower’s current fiscal year, each in form reasonable detail, representing the Borrower’s good faith projections and substance satisfactory to each Lender, acknowledging that Chase's liens in certified by the Equipment leased by Borrower from Chase does not extend Borrower’s chief financial officer as being the most accurate projections available and identical to the Accounts generated projections used by the Borrower for internal planning purposes, together with such Equipment;supporting schedules and information as the Lender may in its discretion require.
(p) Agent shall have received payment Payment of the fees and commissions due through the date of the initial Advance under Section 2.3 and expenses incurred by the Lender through such date and required to be paid by the Borrower under Section 8.6, including all accrued and unpaid Lender Group Expenses;legal expenses incurred through the date of this Agreement.
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all Such other documents and legal matters in connection with as the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselLender may reasonably require.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligations of each Lender under this Agreement and the obligation of the each Lender Group (or any member thereof) to make the initial Initial Advance is shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions precedent that on or before the Closing Date:
(a) the Closing Date All terms, conditions and documentation in connection with this amendment and restatement shall occur on or before October 15, 1998;be acceptable to Lenders.
(b) The making of the Commitment and the Term Loan shall not contravene any Law applicable to Administrative Agent or any Lender.
(c) Each Lender shall have received a Certificate from an Authorized Officer stating that no material adverse change in the business, assets, prospects, or financial condition of Company and its Subsidiaries since the December 31, 1996 financial statements provided to Lenders. Administrative Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, financial information regarding Company and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed Subsidiary of Company requested by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39it.
(d) Agent Each Lender shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance an executed copy of this Agreement and the other Loan Documents to which such Borrower is a party its respective Notes, duly completed and authorizing specific officers of such Borrower to execute the same;
(e) Agent correct. Lenders shall have received copies of each Borrower's Governing Documentsthe Fee Letters signed by Company, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer applicable. Each of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel following shall have been provided with a copy delivered to Administrative Agent on behalf of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to Administrative Agent, Special Counsel and each Lender. The Guaranty Agreement executed by each Guarantor and a Subordination Agreement executed by each payee of an Intercompany Note.
(e) Company shall have delivered to Administrative Agent a Certificate, acknowledging dated the Closing Date, executed by an Authorized Officer, certifying that, to such Authorized Officer's knowledge, (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in Article IV hereof are true and correct in all material respects, and (iii) Company and each Subsidiary of Company has complied with all agreements and conditions to be complied with by it in all material respects under the Loan Papers by such date.
(f) Company and each Guarantor shall have each delivered to Administrative Agent on behalf of Lenders a Secretary's Certificate, dated the Closing Date, certifying (i) that Chase's liens attached copies of the certificates of organization certified by the Secretary of States of the appropriate states, and bylaws are true and complete, and in full force and effect, without amendment except as shown, and (ii) that a copy of the Equipment leased by Borrower from Chase does resolutions authorizing execution and delivery of this Agreement and any Loan Papers, as appropriate, are true and complete, and that such resolutions -45- are in full force and effect, were duly adopted, have not extend been amended, modified, or revoked, and constitute all resolutions adopted with respect to this loan transaction. Administrative Agent and Lenders may conclusively rely on the certificate delivered pursuant to this subsection until they receive notice in writing to the Accounts generated by such Equipment;contrary.
(pg) Administrative Agent shall have received payment an opinion or opinions of all accrued counsel to Company and unpaid Lender Group Expenses;its Subsidiaries, dated the Closing Date, acceptable to Lenders and otherwise in form and substance satisfactory to Lenders and Special Counsel, with respect to this loan transaction and otherwise, including, without limitation, opinions (i) to the valid and binding nature of the Loan Papers, (ii) to the power, authorization and corporate matters of each such Person taken in connection with the transactions contemplated by the Loan Papers, (iii) that the execution, delivery and performance by Company and the Subsidiaries of Company of the respective Loan Papers does not violate any of the terms of Company's or any such Subsidiary's agreements, and (iv) to such other matters as are reasonably requested by Special Counsel.
(qh) Simultaneously with the receipt of proceeds of the Initial Advance, all Indebtedness under the Existing Credit Agreement shall be paid in full, whereupon the Existing Credit Agreement shall automatically terminate and be of no further force or effect.
(i) Administrative Agent shall have received a certificate from an officer received, on behalf of Lenders, each Borrower certifying that there has been no Material Adverse Change of the following, in the financial condition of such Borrower or the Collateral since July 31, 1998; andform and substance satisfactory to Administrative Agent and Special Counsel:
(ri) evidence that all other documents proceedings of Company and legal matters its Subsidiaries taken in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be reasonably satisfactory in form and substance satisfactory to AgentLenders and Special Counsel; and each Lender shall have received copies of all documents or other evidence which Lenders or Special Counsel may reasonably request in connection with this facility, including without limitation the resolutions of the Board of Directors of Company and each LenderSubsidiary, and their respective counselthe requisite authorizations of all other Persons necessary to authorize the transactions contemplated herein, certified to be true and correct by an Authorized Officer;
(ii) payment of all fees, costs and expenses (including, without limitation, attorneys' fees of Special Counsel and the fees set forth in the Fee Letter due to be paid through the Closing Date); and
(iii) a Compliance Certificate computed after giving effect to the Initial Advance.
Appears in 1 contract
Samples: Credit Agreement (Franchise Finance Corp of America)
Conditions Precedent to the Initial Advance. The obligation of This Agreement shall not become effective, the Lender Group (Existing Credit Agreement shall remain in full force and effect, Borrower shall not have any rights under this Agreement and Administrative Agent and Lenders shall not be obligated to take, fulfill or perform any member thereof) to make action hereunder, until the initial Advance is subject to the fulfillment, following conditions have been fulfilled to the satisfaction of Agent, each Lender, Administrative Agent and their respective counsel, of each of the following conditions on or before the Closing DateLenders:
(a) All terms, conditions and documentation in connection with this Agreement shall be acceptable to the Closing Date shall occur on or before October 15, 1998;Lenders.
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary The making of the Commonwealth of Massachusetts Revolver Loan and the City Clerk of Quincy, Massachusetts;Term Loan shall not contravene any Law applicable to the Administrative Agent or any Lender.
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer Authorized Officer stating that since December 31, 2002 (a) no event or condition has occurred or is existing which could reasonably be expected to have a Material Adverse Change; (b) no Litigation has been commenced which, if successful, would have a Material Adverse Change or could challenge any of each Borrower certifying that all tax returns required to be filed such Borrower the transactions contemplated by this Agreement and the other Loan Papers; (c) except for payments allowed under Section 7.06 and 7.09, there have been timely filed and all taxes upon such no Restricted Payments made by the Borrower or its propertiesSubsidiaries; and (d) before and after giving effect to the transactions contemplated by this Agreement, assets, incomeeach the Borrower and its Subsidiaries will be Solvent, and franchises (including real property taxes e) there has been no material increase in liabilities, liquidated or contingent, and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are no material decrease in assets of Borrower or any of its Subsidiaries (other than the subject sale of a Permitted Protest;the Port Angeles and Aiken assets).
(nd) All proceedings of the Borrower, the Parent and each Subsidiary of the Borrower taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall be reasonably satisfactory in form and substance to the Lenders. Each Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
(e) Each Lender shall have received an executed copy of this Agreement and its respective Notes, duly completed and correct. The Administrative Agent shall have received a certificate from an officer copies of each Borrower certifying that its respective Fee Letter signed by Borrower. Each of the following shall have been duly executed by all parties thereto and delivered to the best Administrative Agent on behalf of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to the Administrative Agent, Special Counsel and each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend Lender to the Accounts generated extent required by the Administrative Agent: Each other Loan Paper, including, without limitation, the Security Agreements, the Pledge Agreements, the Global Reaffirmation, the Blocked Account Agreement, and all documentation and agreements necessary to create and perfect a first Lien in all the Collateral (subject to Permitted Liens), and all other documents and instruments in connection therewith. The Borrower, the Parent and each Subsidiary obligor on any Debt other than the Obligations (including Intercompany Notes), together with each payee of such Debt, shall have entered into a Subordination Agreement for each such Debt acceptable to the Administrative Agent, including without limitation a Subordination Agreement with respect to the Management Fees.
(f) Borrower shall have delivered to each Lender a Certificate, dated the Closing Date, executed by an Authorized Officer, certifying that (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in Article V hereof are true and correct as of such date, (iii) each of the Borrower, the Parent and each Subsidiary of the Borrower has complied with all agreements and conditions to be complied with by it under the Loan Papers by such Equipmentdate, and (iv) after giving effect to the transactions contemplated by this Agreement each of the Borrower and its Subsidiaries will be Solvent.
(g) Borrower shall have delivered to each Lender a Secretary's Certificate, dated the Closing Date, certifying (i) that attached copies of the certificates of organization certified by the Secretary of States of the appropriate states for the Borrower, the Parent and each Subsidiary of the Borrower, and bylaws or partnership agreements, as appropriate, delivered to each Lender for each of the Borrower, the Parent and each Subsidiary of the Borrower are true and complete, and in full force and effect, without amendment except as shown, (ii) that a copy of the resolutions for each of the Borrower, the Parent and each Subsidiary of the Borrower authorizing execution and delivery of this Agreement and any Loan Papers, as appropriate, are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified, or revoked, and constitute all resolutions adopted with respect to this loan transaction, (iii) that copies of certificates of good standing, certificates of existence, and certificates of qualification for each of the Borrower, the Parent and each Subsidiary of the Borrower, as appropriate, for the relevant states, have been issued within 30 days prior to the Closing Date and delivered to the Lenders, (iv) that there exist no non-compete agreements that would limit the ability of the Borrower or any of its Subsidiaries to do business as such business is presently conducted executed by the Borrower, the Parent or any Subsidiary of the Borrower, (v) that the Pledged Interests have been issued and are outstanding, and (vi) to the incumbency, name, and signature of each officer of each of the Borrower, the Parent and each Subsidiary of the Borrower authorized to sign this Agreement and the Loan Papers, as applicable, and any amendments to this Agreement and the Loan Papers on its behalf. The Administrative Agent and Lenders may conclusively rely on the certificate delivered pursuant to this subsection until they receive notice in writing to the contrary.
(h) Each Lender shall have received opinions of Cairncross & Hempelmann, special counsel to the Borrower, the Parent and each Subsidiary of the Borrower, dated the Closing Date, in form and substance satisfactory to the Administrative Agent.
(i) Each Lender shall have received an opinion of Xxxx, Raywid & Xxxxxxxxx, special counsel for FCC matters to the Borrower, the Parent and each Subsidiary of the Borrower, dated the Closing Date, in form and substance satisfactory to the Administrative Agent.
(j) Each Lender shall have received, in form and substance satisfactory to it, within 30 days prior to the Closing Date, (i) certificates from the Secretary of State and other appropriate officials of the State of Washington certifying that the Borrower, the Parent and each Subsidiary of the Borrower is each a corporation duly organized and validly existing under the Laws of the State of Washington as of the date thereof, and (ii) certificates of appropriate authorities of all jurisdictions where the Borrower and each Subsidiary of the Borrower is required to be qualified to do business, to the effect that it is in good standing and duly qualified to transact business in such jurisdictions.
(k) Each Lender shall have received each of the following, in form and substance satisfactory to the Administrative Agent, Lenders and Special Counsel:
(i) the results of UCC and other Lien searches against the assets of the Borrower, the Parent and each Subsidiary of the Borrower and the Systems;
(pii) if requested by the Lenders, reasonable evidence that the Borrower, the Parent and each Subsidiary of the Borrower is each the rightful owner and has good title to its Collateral;
(iii) payment of all fees, costs and expenses (including, without limitation, attorneys fees and the fees set forth in the Fee Letter due to be paid through the Closing Date);
(iv) copies of insurance binders or certificates covering the assets of the Borrower and each Subsidiary of the Borrower (including the Systems and including flood insurance) showing the Administrative Agent, on behalf of the Lenders, as loss payee or additional insured, where appropriate; and
(v) a Compliance Certificate computed after giving effect to the Initial Advance.
(l) Administrative Agent shall have received payment copies of all accrued the most recent Cumulative Leakage Index reports for the Borrower and unpaid Lender Group Expenses;its Subsidiaries, in form and substance satisfactory to the Administrative Agent.
(qm) Agent shall have received a certificate from an officer All proceedings of the Borrower, the Parent and each Subsidiary of the Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters taken in connection with the transactions contemplated by this Agreement shall have been deliveredhereby, executedand all documents incidental thereto, or recorded and shall be satisfactory in form and substance satisfactory to Agent, each Lender, . The Administrative Agent and their respective counseleach Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
(n) The Administrative Agent shall have received evidence that all UCC financing statements executed in connection with the Existing Credit Agreement have been recorded.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Agent and their respective its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15December 30, 19981999;
(b) Agent shall have received all financing statements and fixture filings required by the Lender GroupAgent, duly executed by Borrower, and Agent shall have received searches of all recording offices requested by Agent reflecting the filing of its all such financing statements and fixture filings, together with searches of such other offices as Agent may require (including those of Borrower, and the Secretary Subsidiaries of Borrower), each such search dated a date within 15 days of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsClosing Date;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executedexecuted (and acknowledged, as the case may be) by all parties and formalities contemplated thereunder, and each such document shall be in full force and effect:
(i) i. the tri-party blocked account agreements;
ii. the Disbursement Letter;
(ii) iii. the Pay-Off Letter, together with the Prior Lender Assignment Agreements, UCC assignment statements and other documentation evidencing the assignment by the Prior Lenders (and all other holders, if any, of the indebtedness, liabilities and other obligations under or relating to the Prior Credit Agreement) and each other holder of Liens against the properties or assets of Borrower or any of its Subsidiaries (other than Permitted Liens), of its Liens in and to the properties and assets of Borrower and its Subsidiaries;
(iii) iv. the Suretyship AgreementOil and Gas Property Mortgages covering each of the Oil and Gas Properties;
v. Guaranty Agreements, in form and substance acceptable to Agent, executed by each of Borrower's Subsidiaries (iv) other than the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.Magic Circle Partnerships and RB Operating);
vi. Security Agreements, in form and substance acceptable to Agent, executed by Borrower and each of Borrower's Subsidiaries (x) other than the Hale Xxxordination AgreementMagic Circle Partnerships and RB Operating), with respect to all of the assets and properties of any and all of them;
vii. such governmental permits, approvals and orders for each well and each unit pertaining to the Oil and Gas Properties described in the Oil and Gas Property Mortgages as have been requested by Agent, which shall be in form and substance satisfactory to Agent;
viii. the Transfer Order Letters for each well on the Oil and Gas Properties, which shall be in form and substance satisfactory to Agent;
ix. assignments in form and substance acceptable to Agent of each Material Contract pertaining to the Oil and Gas Property Collateral which either (i) affects Borrower's or any of its Subsidiaries', as the case may be, title to the Oil and Gas Property Collateral or otherwise affects the value, use or operation of the Oil and Gas Property Collateral in any material respect or (ii) creates or evidences a material obligation or liability on the part of Borrower or any or its Subsidiaries, together with copies of each such Material Contract attached thereto;
x. a solvency certificate with respect to Borrower and each of its Subsidiaries, in the form and substance acceptable to Agent, executed by an executive officer of Borrower;
xi) . the Customer List Escrow AgreementUnsecured Notes Estoppel Certificate;
xii. all original stock certificates evidencing all the issued and outstanding shares of capital stock of Magic Circle, CDC and MCAC, together with stock powers duly executed in blank by the holders of all of the legal and beneficial ownership of such shares;
xiii. all original stock certificates evidencing all the issued and outstanding shares of capital stock of RVC Energy owned by Borrower, together with stock powers duly executed in blank by Borrower;
xiv. the Real Property Mortgages, dated as of the Closing Date; and 39and
xv. such other documents as shall be required by Agent.
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to by the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as within 10 days of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as within 15 days of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, Agent and their respective its counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer such Collateral Access Agreements from lessors, warehousemen, bailees, and other third persons with respect to (i) Borrower's leased premises and each Subsidiary of Borrower's leased premises at which is located its respective executive offices, (ii) all locations at which Borrower's Books are located from time to time, and (iii) each other location of Borrower as being such officer's good faith best estimate and of the financial performance each Subsidiary of Borrower during except the period covered therebyOil and Gas Properties;
(j) Agent shall have received a Collateral Access Agreement relative copies of all contracts set forth on Schedule 5.1(c), and such contracts shall be in form and substance satisfactory to Borrower's location in Quincy, MassachusettsAgent;
(k) Agent shall have received opinions an opinion of Borrower's and Guarantor's Oklahoma counsel in form and substance satisfactory to Agent in its sole discretion, and each Lender opinions of Borrower's and Guarantors' counsel in their such other states and jurisdictions as may be requested by Agent in form and substance satisfactory to Agent in its sole discretion;
(l) Agent and Agent's counsel shall have been provided with received (i) appraisals of the Oil and Gas Properties in the form of Reserve Reports prepared by a copy third party petroleum engineering firm (including, but not limited to, appraisals, verifications and liquidation analyses of Borrower's and each Carrier Agreement of its Subsidiaries' Proved Reserves) covering the Borrowing Base Entities' Mineral Interests listed on Schedule 5.1(a), in respect each case satisfactory to Agent, and (ii) title reports and/or title opinions for such of the Oil and Gas Properties as shall be required by Agent, in its sole discretion, issued to Agent for the benefit of the Lender Group by a Material Carrierlegal counsel to Borrower or other person that is experienced in the examination of title to such Oil and Gas Properties and is satisfactory to Agent (each a "Title Opinion" and, collectively, the Bell Xxxantic Interconnection Agreement"Title Opinions"), each of which Title Opinions shall be in form and each agreement in respect of any Indefeasible Right substance satisfactory to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier AgreementAgent;
(m) The Mineral Interests in the Oil and Gas Property Collateral shall not be less than the Mineral Interests for such properties furnished by the Borrowing Base Entities to Agent in connection with Agent's credit evaluation in connection with this Agreement;
(n) Borrower shall have delivered to Agent evidence satisfactory to Agent confirming that each of the producing wells listed on Schedule 5.1(b) is located on an Oil and Gas Prxxxxxy (i) covered by the Title Opinions to the extent required by Agent and (ii) described in the legal description contained in an Oil and Gas Property Mortgage which has been duly executed and delivered to Agent;
(o) Borrower shall have delivered to Agent such existing environmental reports Borrower currently has (whether prepared internally or by an outside party) with respect to the Oil and Gas Property Collateral, including, without limitation, spill prevention and control plans;
(p) Agent shall have received a certificate from an officer of each Borrower certifying satisfactory evidence that all tax returns required to be filed such by Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(nr) Agent shall have received a certificate from an officer satisfactory reference investigation reports of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders key officers and are satisfactory to Agent and the Lendersemployees;
(os) Agent On the Closing Date, Borrower shall have received a letter from Chase Equipment Leasing, Inc. not less than $2,000,000 of Availability and unrestricted immediately available cash on hand ("Chase"), as evidenced to Agent in such manner and with such documentation as is in form and substance satisfactory to each Lender, acknowledging Agent) after making the payments described in Section 7.17(a)(i) and paying the $600,000 due on the Closing Date pursuant to Section 2.11(a) and after reserving as an additional deduction from Availability an amount determined by Agent in its sole discretion that Chasewould be sufficient to maintain Borrower's liens and its Subsidiaries' accounts payable and other current liabilities within reasonable terms (with Borrower providing to Agent such evidence of the aging of such accounts payable and other liabilities as is in the Equipment leased by Borrower from Chase does not extend form and substance acceptable to the Accounts generated by such EquipmentAgent);
(pt) Agent shall reviewed Borrower's and each of its Subsidiaries' Hedging Agreements and other hedging arrangements (with respect to its present and future Hydrocarbon production and otherwise), and all of such Hedging Agreements and other hedging arrangements shall be acceptable to Agent;
(u) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) evidence satisfactory to Agent shall have received including, without limitation, a certificate from an executed by the chief financial officer of each Borrower certifying Borrower, to such effect, that there has been no Material Adverse Change has occurred in the business, assets, operations, prospects or financial or other condition of such Borrower or the Collateral any of its Subsidiaries since July 31September 30, 19981999; and
(rv) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, Agent and their respective its counsel.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Agent and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15May 14, 19982003;
(b) Agent shall have received all fully authorized financing statements and fixture filings required by the Lender Group, duly executed by Borrower, from Borrower and Agent shall have searches reflecting the filing each of its financing statements with the Secretary such Restricted Subsidiaries in favor of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsAgent for all relevant jurisdictions;
(c) Agent shall have received each of the following documents, duly including appropriate amendments to and/or reaffirmations of such documents as have been previously executed, and each such document shall be duly executed, in full force and effect:
(i) a. the Disbursement LetterLockbox Agreements;
(ii) b. the Pay-Off Letter;
(iii) the Suretyship Collateral Agency Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) c. the Stock Pledge AgreementPledge, the Subsidiary Guaranties and the Subsidiary Security Agreements; and
d. all other Loan Documents;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of Borrower and each Restricted Subsidiary of Borrower executing a Subsidiary Guaranty or Subsidiary Security Agreement attesting to the resolutions of such BorrowerPerson's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower Person is a party and authorizing specific officers of such Borrower Person to execute the same;
(e) Agent shall have received copies of the Governing Documents of Borrower and each Borrower's Governing DocumentsRestricted Subsidiary of Borrower executing a Subsidiary Security Agreement, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such BorrowerPerson;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each LenderAgent and its counsel, and their respective Agent shall have received such additional documents and information regarding Borrower's insurance arrangements as it shall request, all of which shall be satisfactory to Agent and its counsel;
(g) Agent shall have received duly executed certificates of title with respect to the Vehicles (other than Additional Vehicles) together with such releases of liens and applications therefor, as Agent shall reasonably require to enable the prompt processing of each such title by the appropriate governmental agency in order to properly reflect Agent's Lien (for the benefit of the Lender Group) thereon, and Agent shall have received duly executed certificates of title with respect to the Additional Vehicles described on Schedule 5.3(b);
(h) Agent shall have received an opinion of Borrower's and its domestic Restricted Subsidiaries' counsel, in each case in form and substance reasonably satisfactory to Agent in its sole discretion;
(i) Agent shall have received an amendment fee in the Closing Date Business Plan certified by an officer amount of Borrower as being such officer's good faith best estimate $100,000 for the pro rata benefit of the financial performance of Borrower during the period covered therebyLenders;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusettscalculation of the Borrowing Base prepared by Borrower and certified by the Chief Financial Officer of Borrower as of the Closing Date;
(k) Agent there shall not have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of occurred any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31February 28, 19982003; and
(rl) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, Agent and their respective its counsel.
Appears in 1 contract
Samples: Loan and Security Agreement (Texas New Mexico & Oklahoma Coaches Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) each Bank to make the its initial Advance is hereunder (excluding the Existing Advances) are subject to the fulfillment, to condition precedent that the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions Banks shall have received on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions date of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and initial Advance the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrowerfollowing, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase")day, in form and substance satisfactory to each Lenderthe Banks:
(a) The Notes.
(b) A Modification of Mortgage, acknowledging that Chase's liens Deed of Trust, Future Advance Deed of Trust, Security Agreement, Assignment of Rents and Financing Statement dated as of the date hereof duly executed by the Borrower, Cal-Maine Farms, Inc., and Rabobank to be filed in Franklin County, North Carolina in the Equipment leased form attached hereto as Exhibit D.
(c) A Modification of Mortgage, Deed of Trust, Future Advance Deed of Trust, Security Agreement, Assignment of Rents and Financing Statement dated as of the date hereof duly executed by the Borrower from Chase does not extend and Rabobank to be filed in Xxxxx County, Mississippi in the form attached hereto as Exhibit E.
(d) Such other duly executed amendments to the Accounts generated by such Equipment;Collateral Documents and endorsements to title insurance policies relating thereto as the Administrative Agent may request to ensure the continued validity thereof after giving effect to the extension of the Termination Date and other amendments contemplated hereby.
(pe) Agent shall Evidence that all other actions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect and protect the security interest and liens created by the Consolidated Security Agreement and Mortgages have received payment of all accrued and unpaid Lender Group Expenses;been taken.
(qf) Agent shall have received a certificate from an officer An amendment to and waiver of the defaults arising under (i) the Dairy Facility Reimbursement Agreement, duly executed by the Borrower and Rabobank and (ii) the Xxxxxx Term Agreement, duly executed by the Borrower and Xxxxxx.
(g) Certified copies of (i) resolutions of the Board of Directors of each Borrower Loan Party evidencing approval of each Loan Document to which it is a party and the matters contemplated thereby, and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to each such Loan Document.
(h) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying that there has been no Material Adverse Change the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents contemplated hereby or to be delivered by it hereunder. The Banks may conclusively rely on each such certificate until they shall receive a further certificate of the Secretary or an Assistant Secretary of the respective Loan Party canceling, amending or replacing the prior certificate.
(i) An amendment fee in the financial condition aggregate amount of such Borrower or $227,500 in consideration for each Bank's agreement to amend and restate the Collateral since July 31Existing Credit Agreement and waive the Existing Defaults (the Administrative Agent agreeing to pay each Bank its pro rata portion thereof, 1998calculated based on the Revolving Credit Commitments).
(j) Evidence that the Required Holders (as defined in the Note Agreement) have
(i) waived the Borrower's defaults under subsections 7.1(a) and (e) of the Note Agreement in accordance with Section 9.1 of the Note Agreement; and
(rii) all other documents consented to the amendment to the definitions of the terms "Borrowing Base" and legal matters in connection with the transactions contemplated "Eligible Receivable" as amended by this Agreement shall have been delivered(by execution of the consent attached hereto).
(k) Such documentation as the Administrative Agent may request to evidence the joinder of South Texas Applicators, executedInc. and Southern Equipment Distributors, or recorded Inc. to the Amended Guaranty Agreement and shall be the Consolidated Security Agreement, each as a guarantor and debtor, respectively, thereunder.
(l) A favorable opinion of counsel for the Borrower and the Guarantors, in form and substance satisfactory acceptable to Agent, each Lender, the Banks and their respective counseladdressing such matters as the Banks may reasonably request.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) under this Agreement to make the initial Initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of conditional upon the following conditions being satisfied prior to or on or before the Closing Date:Date (unless otherwise waived by the Lender, in its discretion):
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required receipt by the Lender GroupLender, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:, and in form and substance satisfactory to the Lender, acting reasonably (unless delivery has been waived by the Lender):
(i) this Agreement, dxxx executed and delivered by the Disbursement LetterBorrower;
(ii) certified copies of the Pay-Off LetterConstating Documents of each Loan Party;
(iii) the Suretyship Agreementcertificates of incumbency of each Loan Party;
(iv) certified copies of the Fee Letterresolutions of the board of directors (or equivalent) of each Loan Party, authorizing the execution, delivery and performance of its respective obligations under the Loan Documents to which each is a party;
(v) duly executed copies of the Agents' Side LetterSecurity, duly registered to the Lender’s satisfaction, acting reasonably, where applicable subject only to Permitted Encumbrances;
(vi) a duly executed copy of the Intercompany Subordination Board Observer Agreement;
(vii) duly executed copies of subordination and postponement agreements in respect of any VTB and Earnout Obligations existing as of the Stock Pledge AgreementClosing Date;
(viii) Termination statements relative releases, discharges and postponements (in registrable form where appropriate) covering all Encumbrances affecting the collateral Encumbered by the Security which are not Permitted Encumbrances, if any, or undertakings satisfactory to all financing statements filed by Sprint Communicationsthe Lender, acting reasonably, to provide such releases, discharges and postponements;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Servicesthe Required Approvals, Inc. dba WilTel, Inc.);other than the Post-Closing Approvals; and
(x) letters of opinion from legal counsel to the Hale Xxxordination AgreementLoan Parties, addressed to the Lender relating to, among other things, the subsistence of the Loan Parties; the due authorization, execution, delivery and enforceability of the Loan Documents; the registration, validity and perfection of the security interests granted under the Security, non-contravention of laws and Constating Documents, and due and valid issuance of the Warrants and, upon issuance thereof, of the Warrant Shares upon due exercise of the Warrants;
(xib) the Customer List Escrow Agreement; Borrower shall have paid all fees, costs and 39expenses then owing to the Lender in respect of the Loan;
(c) the Lender shall, acting reasonably, be satisfied with the results of its due diligence investigations (including, without limitation, accounting, business, environmental, regulatory, tax and legal review) in respect of the Loan Parties;
(d) Agent no Default or Event of Default shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, occurred and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the samebe continuing;
(e) Agent shall have received copies receipt of each Borrower's Governing Documentsevidence, as amended, modified, or supplemented to the Closing Datesatisfaction of the Lender, certified by acting reasonably, that appropriate levels of insurance are in place (subject to the Secretary last paragraph of such BorrowerSection 5.1);
(f) Agent shall have received a certificate receipt of status with all regulatory, securities and/or third party consents and/or approvals in respect to each Borrowerof this Agreement, dated as of a date within a reasonable proximity the Loan and the Warrants (up to the Closing DateWarrant Maximum), such certificate in form, and on terms, satisfactory to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictionLender;
(g) Agent shall have received certificates payout letters and discharges, undertakings or releases of status security with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsExisting Debt;
(h) Agent shall have received a certificate signed direction to pay in respect of insurance, together with the endorsements thereto, as are required by Section 6.10, Initial Advance authorizing payout in full of the form and substance of which shall be satisfactory to Agent, each LenderExisting Debt, and their respective counsel;the deduction of all outstanding Lender fees, including the balance of the Commitment Fee, and costs; and
(i) Agent shall have received such other conditions as reasonably determined by the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation obligations of each Lender to make an Advance on the occasion of the Lender Group (or any member thereof) to make the initial Advance borrowing is subject to the fulfillment, to the satisfaction of Agent, each Lender, Administrative Agent and their respective its counsel, of each of the following conditions on or before the Closing Initial Funding Date:
(a) the The Closing Date shall occur on or before October 15, 1998;have occurred.
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Administrative Agent shall have received each of the following documents, duly executed, each (unless otherwise specified below) dated the Initial Funding Date and in form and substance satisfactory to Administrative Agent and each such document shall be in full force and effectof Lenders:
(i) a certificate of Manager certifying that there have been no material changes to the Disbursement Lettercertificates and documents delivered pursuant to Section 3.01(a)(iii) and (iv); and a certificate (A) certifying that all of the officers that executed an incumbency certificate under Section 3.01(a) are still Responsible Officers of the applicable Person, or (B) a certificate with an updated incumbency certificate reflecting the Responsible Officers of such Person as of the Initial Funding Date;
(ii) a certificate of BMR certifying that there have been no material changes to the Pay-Off Lettercertificate and documents delivered pursuant to Section 3.01(a)(vi); and either (A) a certificate certifying that all of the officers that executed an incumbency certificate under Section 3.01(a) are still Responsible Officers of the applicable Person, or (B) a certificate with an updated incumbency certificate reflecting the Responsible Officers of such Person as of the Initial Funding Date;
(iii) certificates evidencing the Suretyship Agreementgood standing of Borrower, Manager, Belvedere Capital, and BMR each in its jurisdiction of formation and, with respect to Borrower only, each other jurisdiction where it is qualified to do business, each dated a date not earlier than ten (10) Business Days prior to the Initial Funding Date;
(iv) opinions of counsel in the Fee Letterform set forth in Exhibit F;
(v) the Agents' Side LetterPledge Agreement, duly executed by a Responsible Officer of Borrower, and all documents contemplated thereby, including, without limitation, any UCC-1 financing statement(s);
(vi) the Intercompany Subordination Control Agreement, duly executed by all parties thereto;
(vii) a Consent and Acknowledgment Agreement executed by all the Stock Pledge Agreementparties thereto;
(viii) Termination statements relative to all financing statements filed by Sprint Communicationssatisfactory results of tax, judgment and Lien searches on Borrower and Belvedere Capital in such jurisdictions as Administrative Agent may reasonably require;
(ix) WorldCom Subordination Agreement (all material documents evidencing any material Permitted Liens or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.Permitted Belvedere Capital Liens and each other material document necessary for the true and correct making of the representation in Section 4.01(b)(ii);
(x) evidence that all Belvedere Equity Interests have been re-registered in the Hale Xxxordination Agreement;name of “State Street Bank and Trust Company for the benefit of [Borrower]” with Belvedere Capital; and
(xi) such other assurances, certificates, documents, consents, or opinions as Administrative Agent reasonably may require.
(c) Any fees required to be paid on or before the Customer List Escrow Agreement; and 39Initial Funding Date shall have been paid.
(d) Administrative Agent shall have received evidence that the Organization Documents of Belvedere Capital have been duly amended to (i) prohibit Belvedere Capital from incurring any Debt, other than Permitted Belvedere Capital Debt, (ii) limit the ability of Belvedere Capital to suspend or delay a certificate from redemption or a payment related thereto so that the Secretary right of each Borrower attesting a Shareholder to redeem and the resolutions payment of such Borrower's Board of Directors authorizing its executionthe redemption price can only be suspended or deferred when (w) the New York Stock Exchange is closed, delivery(x) during any period when trading on the New York Stock Exchange is restricted, (y) during any emergency as determined by the Securities and Exchange Commission, and performance (z) during any other period permitted by order of this Agreement the Securities and Exchange Commission for the other Loan protection of investors, and (iii) require the vote of at least two-thirds of the Shareholders to amend the provisions of the Organization Documents to which such Borrower is a party described in the immediately preceding clauses (i) and authorizing specific officers of such Borrower to execute the same;(ii).
(e) Borrower shall have provided any form requested by Administrative Agent necessary to comply with Regulations U or X.
(f) No “default” or “event of default”, “termination event” or “additional termination event” shall be outstanding under any of the Existing Overflow Agreement, the Existing Credit Agreement or the Existing Swap Contract immediately prior to the Initial Funding Date.
(g) Administrative Agent shall have received copies evidence satisfactory to Administrative Agent of each Borrower's Governing Documentsthe termination of, and repayment of all obligations under, (i) the Existing Overflow Agreement, (ii) the Loan and Security Agreement dated as of July 15, 2003, among Belair Capital Fund LLC, as borrower, Xxxxxxx Xxxxx Mortgage Capital, Inc., as agent, the lenders party thereto, and Xxxxxxx Xxxxx Capital Services, Inc., as swap provider, as amended, modified, or supplemented to (iii) the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, Loan and Security Agreement dated as of a date within a reasonable proximity to June 30, 2003, between Belmar Capital Fund LLC, as borrower, Xxxxxxx Xxxxx Mortgage Capital, Inc., as agent, the Closing Datelenders party thereto, such certificate to be issued by and Xxxxxxx Xxxxx Capital Services, Inc., as swap provider, as amended, (iv) the appropriate officer of the jurisdiction of organization of such BorrowerExisting Credit Agreement, and (v) any Swap Contracts which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;are not Permitted Swap Contracts.
(h) Agent Borrower shall have received provided (A) a certificate certified list of insurance, together with the endorsements thereto, face amount of all mortgage Obligations of Recourse Subsidiaries in effect as are required by Section 6.10, of the form and substance of which shall be satisfactory to Agent, each LenderInitial Funding Date, and their respective counsel;(B) all of the information, notices, and reports described in Section 5.01(b) (other than Section 5.01(b)(iv) and (x)), but without giving effect to the timing of the delivery of such information under Section 5.01, that were prepared, obtained or applicable between the Closing Date and the Initial Funding Date.
(i) Agent Borrower shall have received the Closing Date Business Plan certified by provided Administrative Agent with an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;updated Schedule 5.02
(a) acceptable to Administrative Agent.
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and The Initial Funding Date shall be in form and substance satisfactory to Agenton or before April 1, each Lender, and their respective counsel2010.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligations of each Lender under this Agreement and the obligation of the each Lender Group (or any member thereof) to make the initial Advance is Initial Advances shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions precedent that on or before the Closing Date:
(a) All terms, conditions and documentation in connection with this Agreement shall be acceptable to the Closing Date shall occur on or before October 15, 1998;Lenders.
(b) The making of the Revolver A Loan, the Revolver B Loan and the Term Loan shall not contravene any Law applicable to the Administrative Agent or any Lender.
(c) Each Lender shall have received a Certificate from an Authorized Officer stating that no Material Adverse Change, as determined by the Borrower, shall have occurred and be continuing (A) in the financial markets with respect to cable television systems in general, or (B) in the Systems, business, assets, prospects, or financial condition since the December 31, 1999 audited financial statements provided to the Lenders. Administrative Agent shall have received all financing statements and fixture filings required by financial information regarding the Lender Group, duly executed by Borrower, the Parent and Agent shall have searches reflecting the filing of its financing statements with the Secretary each Subsidiary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed Borrower requested by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39it.
(d) Agent All proceedings of the Borrower, the Parent and each Subsidiary of the Borrower taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall have received a certificate from the Secretary of each Borrower attesting be reasonably satisfactory in form and substance to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent Lenders. Each Lender shall have received copies of each Borrower's Governing Documents, as amended, modified, all documents or supplemented to the Closing Date, certified by the Secretary of other evidence that it may reasonably request in connection with such Borrower;transactions.
(fe) Agent Each Lender shall have received a certificate an executed copy of status with respect to each Borrowerthis Agreement and its respective Notes, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent duly completed and correct. Each Lender shall have received certificates copies of status with respect to each its respective Fee Letters signed by Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer applicable. Each of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel following shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, duly executed by all parties thereto and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that delivered to the best Administrative Agent on behalf of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to the Administrative Agent, Special Counsel and each LenderLender to the extent required by the Administrative Agent: Each other Loan Paper, acknowledging that Chase's liens including, without limitation, the Pledge Agreements granting the Lenders a first and prior security interest in the Equipment leased by Borrower from Chase does not extend Pledged Interests, a Guaranty of the Obligation in form and substance acceptable to the Accounts generated Lenders executed by each Subsidiary of the Borrower, and all documentation and agreements necessary to create and perfect a first Lien in all the Collateral (subject to Permitted Liens), and all other documents and instruments in connection therewith. The Pledged Interests shall have been delivered to the Administrative Agent, and, with respect to the Capital Stock where applicable, together with stock powers executed in blank. The Borrower, the Parent and each Subsidiary obligor on any Debt other than the Obligations (including Intercompany Notes), together with each payee of such Debt, shall have entered into a Subordination Agreement for each such Debt acceptable to the Administrative Agent.
(f) Borrower shall have delivered to each Lender a Certificate, dated the Closing Date, executed by an Authorized Officer, certifying that (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in Article V hereof are true and correct as of such date, and (iii) each of the Borrower, the Parent and each Subsidiary of the Borrower has complied with all agreements and conditions to be complied with by it under the Loan Papers by such Equipmentdate.
(g) Borrower shall have delivered to each Lender a Secretary's Certificate, dated the Closing Date, certifying (i) that attached copies of the certificates of organization certified by the Secretary of States of the appropriate states for the Borrower, the Parent and each Subsidiary of the Borrower, and bylaws or partnership agreements, as appropriate, delivered to each Lender for each of the Borrower, the Parent and each Subsidiary of the Borrower are true and complete, and in full force and effect, without amendment except as shown, (ii) that a copy of the resolutions for each of the Borrower, the Parent and each Subsidiary of the Borrower authorizing execution and delivery of this Agreement and any Loan Papers, as appropriate, are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified, or revoked, and constitute all resolutions adopted with respect to this loan transaction, (iii) that copies of certificates of good standing, certificates of existence, and certificates of qualification for each of the Borrower, the Parent and each Subsidiary of the Borrower, as appropriate, for the relevant states, have been issued within 30 days prior to the Closing Date and delivered to the Lenders, (iv) that there exist no non-compete agreements that would limit the ability of the Borrower or any of its Subsidiaries to do business as such business is presently conducted executed by the Borrower, the Parent or any Subsidiary of the Borrower, (v) that the Pledged Interests have been issued and are outstanding, and (vi) to the incumbency, name, and signature of each officer of each of the Borrower, the Parent and each Subsidiary of the Borrower authorized to sign this Agreement and the Loan Papers, as applicable, and any amendments to this Agreement and the Loan Papers on its behalf. The Administrative Agent and Lenders may conclusively rely on the certificate delivered pursuant to this subsection until they receive notice in writing to the contrary.
(h) Each Lender shall have received opinions of Cairncross & Hempelmann, special counsel to the Borrower, the Parent and each Subsidiary of the Borrower, dated the Closing Date, in the form of Exhibit I hereto.
(i) Each Lender shall have received an opinion of Colx, Xaywid & Braxxxxxx, xpecial counsel for FCC matters to the Borrower, the Parent and each Subsidiary of the Borrower, dated the Closing Date in the form of Exhibit J hereto.
(j) Each Lender shall have received, in form and substance satisfactory to it, within 30 days prior to the Closing Date, (i) certificates from the Secretary of State and other appropriate officials of the State of Washington certifying that the Borrower, the Parent and each Subsidiary of the Borrower is each a corporation duly organized and validly existing under the Laws of the State of Washington as of the date thereof, and (ii) certificates of appropriate authorities of all jurisdictions where the Borrower and each Subsidiary of the Borrower is required to be qualified to do business, to the effect that it is in good standing and duly qualified to transact business in such jurisdictions.
(k) Each Lender shall have received each of the following, in form and substance satisfactory to the Administrative Agent, Lenders and Special Counsel:
(i) the results of UCC and other Lien searches against the assets of the Borrower, the Parent and each Subsidiary of the Borrower and the Systems;
(pii) if requested by the Lenders, reasonable evidence that the Borrower, the Parent and each Subsidiary of the Borrower is each the rightful owner and has good title to its Collateral;
(iii) payment of all fees, costs and expenses (including, without limitation, attorneys fees and the fees set forth in the Fee Letter due to be paid through the Closing Date);
(iv) copies of insurance binders or certificates covering the assets of the Borrower and each Subsidiary of the Borrower (including the Systems and including flood insurance) showing the Administrative Agent, on behalf of the Lenders, as loss payee or additional insured, where appropriate; and
(v) a Compliance Certificate computed after giving effect to the Initial Advance.
(l) Administrative Agent shall have received payment copies of all accrued the most recent Cumulative Leakage Index reports for the Borrower and unpaid Lender Group Expenses;its Subsidiaries, in form and substance satisfactory to the Administrative Agent.
(qm) Agent The Borrower's prior credit facility shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change paid, cancelled, and released in full, and all security interests granted by the financial condition of such Borrower or the Collateral since July 31, 1998; andany of its Affiliates pursuant thereto shall have been released.
(rn) all other documents All proceedings of the Borrower, the Parent and legal matters each Subsidiary of the Borrower taken in connection with the transactions contemplated by this Agreement shall have been deliveredhereby, executedand all documents incidental thereto, or recorded and shall be satisfactory in form and substance satisfactory to Agent, each Lender, . The Administrative Agent and their respective counseleach Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
Appears in 1 contract
Samples: Credit Agreement (Northland Cable Properties Six LTD Partnership)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is under the Revolving Credit Facility shall be subject to the fulfillmentcondition precedent that the Lender shall have received all of the following, each in form and substance satisfactory to the satisfaction of Agent, each Lender in Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:’s sole discretion.
(a) This Agreement, properly executed on behalf of the Closing Date shall occur on or before October 15, 1998Borrowers;
(b) Agent shall have received all financing statements and fixture filings required by the Lender GroupThe Note, duly properly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary on behalf of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsBorrowers;
(c) Agent Confirmation to Lender’s satisfaction that Borrower shall have received each obtained insurance insuring the collection of Foreign Accounts from Insurer under policy number 4064883 for the benefit of Lender covering Insured Foreign Accounts against nonpayment by reason of the following documents, duly executedevents or conditions set forth in such policy (“Foreign Accounts Insurance”), and confirmation of assignment to Lender of the benefit of such Foreign Accounts Insurance;
(d) Current searches of appropriate filing offices showing that (i) no state or federal tax or judgment liens have been filed and remain in effect against any Borrower, (ii) no financing statements have been filed and remain in effect against the Borrowers, except those financing statements relating to liens permitted pursuant to Section 7.1 hereof and those financing statements filed by the Lender, and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interests granted hereunder, to the extent the Security Interests are capable of being perfected by filing;
(e) A certificate of the Secretary or an Assistant Secretary of each such document shall be in full force and effect:
Borrower, certifying as to (i) the Disbursement Letter;
(ii) resolutions of the Pay-Off Letter;
(iii) directors and, if required, the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions shareholders of such Borrower's Board of Directors , authorizing its the execution, delivery, delivery and performance of this Agreement and the other Loan Documents to which Documents, (ii) the articles of incorporation and bylaws of such Borrower is a party Borrower, and authorizing specific (iii) the signatures of the officers or agents of such Borrower authorized to execute and deliver this Agreement, the same;
(e) Agent shall have received copies of each Borrower's Governing Documentsother Loan Documents and other instruments, as amendedagreements and certificates, modifiedincluding Advance requests, or supplemented to the Closing Date, certified by the Secretary on behalf of such Borrower;
(f) Agent shall have received a A current certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer Secretary of State of the jurisdiction state of organization of such each Borrower’s incorporation, which certificate shall indicate certifying that such Borrower is in good standing in compliance with all corporate organizational requirements of such jurisdictionstate;
(g) Agent shall have received certificates of status with respect Evidence that each Borrower is duly licensed or qualified to each Borrower, each dated as of a date within a reasonable proximity to transact business in all jurisdictions where the Closing Date, such certificates to be issued by the appropriate officer character of the jurisdictions in which its failure to be duly qualified property owned or licensed would constitute a Material Adverse Change, which certificates shall indicate that leased or the nature of the business transacted by it makes such Borrower is in good standing in such jurisdictionslicensing or qualification necessary;
(h) Agent shall have received a A certificate of insurance, together with an officer of each Borrower confirming the endorsements thereto, as are required by Section 6.10, the form representations and substance of which shall be satisfactory to Agent, each Lender, and their respective counselwarranties set forth in Article V hereof;
(i) Agent shall have received An opinion of counsel to each Borrower, addressed to the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of Lender in form and substance and from counsel satisfactory to the financial performance of Borrower during the period covered therebyLender in its sole discretion;
(j) Agent shall have received Certificates of the insurance required hereunder, with all hazard insurance containing a Collateral Access Agreement relative to Borrower's location lender’s loss payable endorsement in Quincy, Massachusettsfavor of the Lender and with all liability insurance naming the Lender as an additional insured;
(k) Agent shall have received opinions of Borrower's counsel a Borrowing Base certificate in the form and substance satisfactory attached hereto as Exhibit D demonstrating to Agent and each Lender in their sole discretionLender’s satisfaction that the initial Advance does not exceed the Borrowing Base;
(l) Agent Payment of the fees and Agent's counsel shall have been provided with a copy commissions due through the date of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreementinitial Advance, and each agreement in respect of any Indefeasible Right expenses incurred by the Lender through such date and required to Use granted to Borrower, certified be paid by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreementthe Borrowers under Section 9.6 hereof;
(m) Agent shall have received a certificate from an officer A copy of each Borrower certifying that all tax returns required to be filed Borrower’s Articles of Incorporation certified by the Secretary of State of the state of such Borrower’s organization confirming the exact name of such Borrower have been timely filed and all taxes upon the identification number assigned to such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 by such taxes that are the subject of a Permitted Protestoffice;
(n) Agent Establishment of a lock box, a collateral account and a sweep account, all on Lender’s standard terms, into which all payments on Foreign Accounts shall be deposited and over which Lender shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;sole control; and
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all Such other documents and legal matters as the Lender in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselits sole discretion may require.
Appears in 1 contract
Samples: Credit and Security Agreement (Synergetics Usa Inc)
Conditions Precedent to the Initial Advance. The obligation of the (1) Borrower shall have delivered to Lender Group (or any member thereof) to make the initial Advance is subject prior to the fulfillmentClosing Date (except with respect to item (N), to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before which shall be provided within 10 days after the Closing Date:
) or, with respect to paragraph (aH) the Closing Date shall occur on or before October 15below, 1998;
(b) Agent Lender shall have received all financing statements and fixture filings required received, unless otherwise requested by Lender, the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing original of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executedexecuted and delivered by all parties thereto, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent Lender and each Lender in their sole discretionits counsel:
(A) the Note;
(lB) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect [Reserved]
(C) UCC financing statements for perfection of any Indefeasible Right to Use granted to Borrower, certified of or all of the Collateral as reasonably requested by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier the Lender;
(D) the Lockbox Agreement;
(mE) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted ProtestTransfer Agreement;
(nF) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the LendersCustodial Agreement;
(oG) Agent this Agreement;
(H) final approval of Lender's credit committee to make the Loan (which approval shall have received be deemed granted upon the making of the first Advance);
(I) the Transfer and Servicing Agreement;
(J) each document comprising part of the Articles of Incorporation and Resolutions for the Borrower, the Intermediary Corporation, the Servicer, the Guarantor and each Originator certified by a letter Responsible Officer of the related entity; and
(K) at least five Business Days prior to the Closing, favorable opinions in form and substance satisfactory to Lender and its counsel, from Chase Equipment Leasingindependent, Inc. nationally-recognized counsel for Borrower, with respect to (I) the Security Interest in the Collateral in favor of the Lender, as being first priority, perfected, valid and enforceable, (II) the "Chasetrue sale" of the Instruments from each Originator related to such Timeshare Project to the Intermediary Corporation, and non-consolidation of, each Originator and the Intermediary Corporation, the Intermediary Corporation and its owners (if not addressed in the immediately preceding clause), and either ")true sale" or first priority perfected security interest from the Intermediary Corporation to the Borrower, (III) the due organization, valid existence and good standing of the Custodian, the Lockbox Bank each Originator, the Intermediary Corporation, the Guarantor, the Servicer and the Borrower, (IV) the enforceability, legal, valid and binding nature of the Obligations of, due authorization of, the Custodian, the Lockbox Bank, the Borrower, the Intermediary Corporation, the Originator related to each such Timeshare Project, the Servicer, and Vistana with regard to the Documents and the Loan, (V) federal and applicable state and local real estate and securities law pertaining to the Guarantor, the Servicer, each Originator, the Intermediary Corporation and the Borrower, as applicable, including, without limitation, or as otherwise acceptable to Lender, the Securities Act of 1933, the Investment Company Act, the Real Estate Settlement and Procedures Act, the Truth-in-Lending Settlement Act, applicable local and state law and (VI) any other opinions reasonably requested by Lender, including, but not limited to if the Timeshare Project has not been registered under Interstate Land Sales Full Disclosure Act and Lender requests such an opinion, a copy of an advisory opinion issued by the federal Office of Interstate Land Sales Registration that the Project does not fall within the purview of the Interstate Land Sales Full Disclosure Act, and such opinions, shall be dated the Closing Date and opine to such entities and the Collateral, as applicable, not only as to the Closing Date but also as to each future Transfer Date as to subsequently-acquired Collateral. Lender may in its sole discretion, accept the opinion of Borrower's counsel on the applicability of such act;
(L) lien, litigation and judgment searches, in form and substance satisfactory to each Lender, acknowledging that Chase's liens for the Borrower, the Intermediary Corporation, each Originator and Vistana conducted in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipmentjurisdictions as Lender deems appropriate;
(pM) Agent shall have received payment [Reserved]
(N) evidence of all accrued fidelity bond coverage and unpaid Lender Group Expenseserrors and omissions insurance insuring each Servicer and subservicer are acting with respect to the Collateral to the reasonable satisfaction of the Lender;
(qO) Agent shall have received a certificate from an officer payment of each Borrower certifying that there has been no Material Adverse Change in the financial condition of Lender's Attorney's Fees due with respect to the closing;
(P) such Borrower or the Collateral since July 31, 1998other documents as Lender may reasonably require; and
(rQ) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselGuaranty.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Agent and their respective its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15August 19, 19982000;
(b) Agent shall have received all financing statements and fixture filings required by the Lender GroupAgent, duly executed by Borrower, and Agent shall have received searches of all recording offices requested by Agent reflecting the filing of its all such financing statements and fixture filings, together with searches of such other offices as Agent may require (including those of Borrower, and the Secretary Subsidiaries of Borrower), each such search dated a date within 15 days of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsClosing Date;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executedexecuted (and acknowledged, as the case may be) by all parties and formalities contemplated thereunder, and each such document shall be in full force and effect:
(i) i. the tri-party blocked account agreements;
ii. the Disbursement Letter;
iii. the Refinancing Letter, together with the Prior Lender Assignment Agreements, UCC assignment statements, UCC termination statements and other documentation evidencing the assignment and/or termination (iias determined by Agent) by the Pay-Off LetterPrior Lenders (and all other holders, if any, of the indebtedness, liabilities and other obligations under or relating to the Prior Credit Agreement) and each other holder of Liens against the properties or assets of Borrower or any of its Subsidiaries (other than Permitted Liens), of its Liens in and to the properties and assets of Borrower and its Subsidiaries;
(iii) iv. the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network ServicesOil and Gas Property Mortgages, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary dated as of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by covering each of the Secretary of such BorrowerOil and Gas Properties;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase")v. Guaranty Agreements, in form and substance satisfactory acceptable to Agent, executed by each Lenderof Borrower's Subsidiaries;
vi. Security Agreements, acknowledging that Chasein form and substance acceptable to Agent, executed by Borrower and each of Borrower's liens Subsidiaries, with respect to all of the assets and properties of any and all of them;
vii. the governmental permits, approvals and orders for such wells and such units as may be required by Xxxnt pertaining to the Oil and Gas Properties described in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued Oil and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31Gas Property Mortgages, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and which shall be in form and substance satisfactory to Agent;
viii. the Transfer Order Letters for such purchasers of production from wells on the Oil and Gas Properties as max xx required by Agent, which shall be in form and substance satisfactory to Agent;
ix. assignments in form and substance acceptable to Agent of each LenderMaterial Contract pertaining to the Oil and Gas Property Collateral which either (i) affects Borrower's or any of its Subsidiaries', as the case may be, title to the Oil and their respective counselGas Property Collateral or otherwise affects the value, use or operation of the Oil and Gas Property Collateral in any material respect or (ii) creates or evidences a material obligation or liability on the part of Borrower or any or its Subsidiaries, together with copies of each such Material Contract attached thereto;
x. a solvency certificate with respect to Borrower and each of its Subsidiaries, in the form and substance acceptable to Agent, executed by an executive officer of Borrower;
xi. the Mortgage Amendment Agreements, dated as of the Closing Date covering each of the mortgages, deeds of trust and other mineral interest security agreements assigned to Agent for the benefit of the Lenders pursuant to the Prior Lender Assignment Agreements;
xii. all original Stock certificates and other instruments or certificates evidencing all the issued and outstanding shares of capital Stock or other equity interests, as the case may be, of Blue Heel owned by Borrower, together with Stock powers and other assignments and powers, as the case may be, duly executed in blank by Borrower;
xiii. all original Stock certificates evidencing all the issued and outstanding shares of capital Stock of Borrower owned by Parent or any other Person, together with Stock powers duly executed in blank by Parent and all of the other holders of all of the legal and beneficial ownership thereof;
xiv. the Real Property Mortgages, dated as of the Closing Date; and
xv. such other documents as shall be required by Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Southwest Royalties Holdings Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Lenders to make the initial Advance hereunder is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Dateprecedent:
(a) the Closing Date The representations and warranties set forth in Article III hereof and in all other Loan Documents shall occur on or before October 15, 1998;be true and correct.
(b) Agent Borrower shall have received all financing statements executed and fixture filings required by delivered to Agent and Lenders, or caused to be executed and delivered to Agent and Lenders, on or prior to the Lender Groupdate of execution of this Agreement, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effectfollowing:
(i) the Disbursement LetterThe Notes;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a A certificate from of the Secretary or Assistant Secretary of each Borrower attesting certifying to the resolutions votes of such Borrower's Board of Directors authorizing its execution, delivery, the execution and delivery of and performance by the Borrower of its obligations under, this Agreement Agreement, the Notes and the other Loan Documents to which such Borrower it is a party and authorizing specific officers (or any other evidence of such Borrower Person's corporate authority to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with enter into the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and hereby that shall be in form and substance satisfactory to the Agent);
(iii) A certificate of the Secretary or Assistant Secretary of Borrower which shall certify the names of the officers of Borrower authorized to sign this Agreement, the Notes, and any other documents or certificates to be delivered pursuant to this Agreement by Borrower or any of its officers, together with the true signatures of such officers. Agent may conclusively rely on such certificate until they shall receive a further certificate of the Secretary or an Assistant Secretary of Borrower canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate;
(iv) Good Standing Certificates, dated reasonably near the date of the Loans, of the Nevada Secretary of State and the New Mexico State Corporation Commission stating that Borrower is duly incorporated (or qualified) and in good standing in such jurisdiction and has filed all annual reports and has paid all franchise and other taxes required to be filed or paid to the date of such certificate;
(v) A favorable written opinion of Borrower's counsel in favor of Agent, each Lenderdated the date of this Agreement, in the form attached hereto as Exhibit C;
(vi) The Loan Documents, together with any other documents required by the terms thereof;
(vii) Insurance certificates showing compliance with the provisions of Section 6.06 hereof; and
(viii) Such other supporting documents, legal opinions, agreements and their respective counselcertificates as the Agent or its counsel may request.
(c) All legal matters incident to the transactions hereby contemplated shall be satisfactory to counsel of Agent.
(d) No Default or Event of Default shall have occurred and be continuing or would result from the making of the Loans, as determined by Majority Lenders.
(e) No Material Adverse Change, or development reasonably likely to have a Material Adverse Effect, shall have occurred and be continuing, as determined by Majority Lenders.
(f) Borrower shall have established a gold floor program with Gerald (to remain in xffect during the term of this Agreement) covering 340,000 troy ounces of gold ax x minimum price of $280.00 per troy ounce and 70,000 troy ounces of gold ax x minimum price of $335.00 per troy ounce.
(g) Xxrrower shall have entered into the Purchase Contract.
(h) Borrower shall have entered into the Trading Agreement.
(i) Borrower shall have obtained all permits, licenses, consents and authorizations (including, without limitation, environmental and mining permits) necessary (as determined by Majority Lenders) to conduct its business at the Mines (other than the Copper Flat Mine).
(j) Borrower shall have paid all agreed upon closing Expenses.
(k) The representations and warranties set forth in Article III hereof and in all other Loan Documents shall be true and correct, as certified by a certificate with regard thereto in the form of Exhibit T signed by an authorized officer of Borrower.
(l) Borrower has satisfied all conditions precedent for the initial advance under equipment loans existing on the date hereof.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Alta Gold Co/Nv/)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the its initial Advance to the Company is subject to the fulfillment, to condition that the satisfaction of Agent, each Lender, and their respective counsel, of each of Lender shall have received the following conditions on or before the Closing Datefollowing:
(a) this Agreement executed by the Closing Date shall occur on or before October 15, 1998Company;
(b) Agent shall have received all financing statements and fixture filings required the Note executed by the Lender Group, duly executed by Borrower, Company and Agent shall have searches reflecting payable to the filing of its financing statements with the Secretary order of the Commonwealth Lender in the amount of Massachusetts and the City Clerk of Quincy, MassachusettsCommitment;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) Security Documents executed by the Disbursement LetterCompany;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a Notice of Advance with respect to the initial Advance meeting the requirements of Section 2.03;
(e) a certificate from of an officer and of the Secretary secretary or an assistant secretary of the Company certifying, inter alia, (i) true and complete copies of each Borrower attesting to of the articles or certificate of incorporation, as amended and in effect of the Company and each of its Subsidiaries, the bylaws, as amended and in effect, of the Company and each of its Subsidiaries and the resolutions of such Borrower's adopted by the Board of Directors of the Company (A) authorizing its the execution, delivery, delivery and performance by the Company of this Agreement and the other Loan Documents to which such Borrower it is or will be a party and the Advances to be made hereunder, (B) approving the forms of the Loan Documents to which it is or will be a party and which will be delivered at or prior to the date of the initial Advance and (C) authorizing specific officers of such Borrower the Company to execute and deliver the same;
Loan Documents to which it is or will be a party and any related documents, including, any agreement contemplated by this Agreement, (eii) Agent shall the incumbency and specimen signatures of the officers of the Company executing any documents on its behalf and (iii) that there has been no change in the businesses or financial condition of the Company which could have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrowera Material Adverse Effect;
(f) Agent shall have received a certificate of status with respect to each Borrowerfavorable, dated as of a date within a reasonable proximity signed opinions addressed to the Closing DateLender from Vander Woude, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such BorrowerMaloxx & Xstrx, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each BorrowerX.C., each dated as of a date within a reasonable proximity counsel to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase")Company, in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such EquipmentLender and their counsel;
(pg) Agent shall have received the payment to the Lender of all accrued reasonable fees and unpaid Lender Group Expenses;
expenses (qincluding the reasonable fees and disbursements of Andrxxx & Xurtx X.X.P.) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in agreed upon by such parties to be paid on the financial condition of such Borrower or the Collateral since July 31, 1998Execution Date; and
(rh) certificates of appropriate public officials as to the existence, good standing and qualification to do business as a foreign corporation, as applicable, of the Company and each of its Subsidiaries in each jurisdiction in which the ownership of its properties or the conduct of its business requires such qualifications and where the failure to so qualify would have a Material Adverse Effect. The acceptance of the benefits of the initial Credit Event shall constitute a representation and warranty by the Company to the Lender that all other documents and legal matters of the conditions specified in connection with the transactions contemplated by this Agreement Section above shall have been delivered, executed, satisfied or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselwaived as of that time.
Appears in 1 contract
Samples: Revolving Credit Agreement (Firstcity Financial Corp)
Conditions Precedent to the Initial Advance. The Lender's obligation of the Lender Group (or any member thereof) to make the initial Advance is hereunder shall be subject to the fulfillment, to condition precedent that the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent Lender shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrowerfollowing, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;the Lender:
(li) Agent This Agreement and Agentall Security Documents, properly executed by the Borrowers, each Guarantor and any applicable third parties to the extent a party thereto.
(ii) A true and correct copy of any and all leases pursuant to which any Borrower is leasing its premises, together with a landlord's counsel shall disclaimer and consent with respect to each such lease.
(iii) Current searches of appropriate filing offices showing that (i) no liens have been provided with filed and remain in effect against any Borrower except liens permitted hereunder or liens held by persons who have agreed in writing that upon receipt of proceeds of the initial Advance, they will satisfy, release or terminate such liens in a copy manner satisfactory to the Lender, and (ii) the Lender has duly filed all financing statements necessary to perfect the Security Interest, to the extent the Security Interest is capable of being perfected by filing.
(iv) A certificate of each Carrier Borrower's Secretary or Assistant Secretary certifying that attached to such certificate are (i) the resolutions of the Borrower's Directors and, if required, Owners, authorizing the execution, delivery and performance of the Loan Documents, (ii) true, correct and complete copies of the Borrower's organizational documents, and (iii) examples of the signatures of the Borrower's officers or agents authorized to execute and deliver this Agreement and the Security Documents and other instruments, agreements and certificates, including advance requests, on the Borrower's behalf.
(v) A current certificate issued by Secretary of State of the state of each Borrower's organization certifying that such Borrower is in respect compliance with all applicable organizational requirements of a Material Carriersuch state.
(vi) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(vii) A certificate of an Officer of the Borrower confirming, in his representative capacity, the Bell Xxxantic Interconnection Agreement, representations and each agreement warranties set forth in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, paragraphs 3 and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;4 above.
(mviii) Agent shall have received An opinion of counsel to the Borrowers and Guarantor, addressed to the Lender.
(ix) Certificates of the insurance required hereunder, with all hazard insurance containing a certificate from lender's loss payable endorsement in the Lender's favor and with all liability insurance naming the Lender as an officer additional insured.
(x) Without limiting the foregoing, a separate guaranty and security agreement providing for a broad form security interest, properly executed by each Guarantor, pursuant to which each Guarantor unconditionally guarantees and secures the full and prompt payment of each Borrower certifying that all tax returns Obligations.
(xi) Payment of the fees and commissions due hereunder through the date of the initial Advance and expenses incurred by the Lender through such date and required to be filed such Borrower have been timely filed and paid by the Borrowers hereunder, including all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are legal expenses incurred through the subject date of a Permitted Protest;this Agreement.
(nxii) Agent shall have received a certificate from an officer All collateral schedules, security interest subordination agreements, searches, abstracts, releases and termination statements which Lender may request adequately to assure and confirm the creation, perfection and priority of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to security interests created hereunder or under the Lenders and are satisfactory to Agent and the Lenders;Security Documents.
(oxiii) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all Such other documents and legal matters as the Lender in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselits sole discretion may require.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Lenders to make the initial Loan Advance is will be subject to receipt by the fulfillmentAgent of the following, each in a form satisfactory to the Agent, and/or satisfaction of the following, unless waived by the Agent on terms satisfactory to the Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) an executed copy of an Advance Request Certificate and a Borrowing Base Certificate shall have been received not less than 1 Business Day before the Closing Date shall occur on or before October 15, 1998date of the proposed Loan Advance;
(b) Agent shall have received all financing statements and fixture filings required an executed copy of a Guarantee delivered by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary each of the Commonwealth of Massachusetts and Obligors (other than the City Clerk of Quincy, MassachusettsBorrower);
(c) Agent shall have received an executed copy of each of the following documentsSecurity Agreements, duly executed, and each such document shall be in full force and effect:
(i) other than the Disbursement LetterVendor Subordination Agreements;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate approval from the Secretary Toronto Stock Exchange with respect to issuance of each Borrower attesting the Warrants, together with executed copies of the Warrants and a customary opinion covering securities matters related to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the sameWarrants;
(e) the Agent shall have received being added (i) as an additional insured to each commercial general liability insurance policy maintained by an Obligor and (ii) as a mortgagee and loss payee to each property and business insurance policy maintained by an Obligor, and the Agent receiving certificates of insurance for all such insurance policies, with such additional insured and second loss payee endorsements, together with copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrowerapplicable policies;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued receipt by the appropriate officer Agent of all information necessary for the jurisdiction Agent to comply with its legal and internal requirements in respect of organization applicable money-laundering legislation, proceeds of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictioncrime legislation and “know your customer” requirements;
(g) Agent shall have received certificates completion of status and satisfaction with respect to each Borrowerall necessary financial, each dated as insurance and legal due diligence (including the Agent’s satisfaction with the nature and scope of a date within a reasonable proximity to any Liens affecting the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsObligors);
(h) Agent shall have received a certificate of insurance, together with corporate organizational chart for the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counselObligors;
(i) Agent shall have received the Closing Date Business Plan certified by an a certificate of a senior officer of Borrower as being such officer's good faith best estimate each Obligor to which are appended: (i) copies of the financial articles of incorporation, certificate of formation and by-laws or constitution (if applicable), operating agreement or shareholder agreement governing the affairs of each Obligor (if applicable), (ii) an incumbency certificate setting out the names and offices of all directors and officers of each Obligor, together with specimen signatures of same, and (iii) certified copies of the resolutions of the shareholders or directors of each Obligor authorizing the execution, delivery and performance of Borrower during the period covered Transaction Documents to which each is a party and the transactions contemplated thereby, and the granting of security;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy regarding corporate status of each Carrier Agreement Obligor, the due authorization, execution and delivery of the Transaction Documents to which such Obligor is a party, all registrations in respect of a Material Carriersuch security, the Bell Xxxantic Interconnection Agreementresults of all applicable searches, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best enforceability of such Borrower's knowledge there are no outstanding complaints against any Borrower made Transaction Documents; all such opinions to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Agent;
(k) the Agent shall have received a title insurance policy in respect of the real properties owned by the Obligors (provided that such title insurance policies shall only be required if the Agent can be added to any existing policies in favour of Maynbridge Capital Inc. in a commercially reasonable manner);
(l) establishment of the Collections Account;
(m) all representations and warranties provided for in the Transaction Documents being true, each Lenderaccurate and complete, in all material respects, as of the date of such Loan Advance;
(n) evidence that all security given to the Agent is registered and their respective counselperfected in all such jurisdictions satisfactory to the Agent in order to provide the Agent with a first-ranking security interest (subject only to Permitted Encumbrances) in the Collateral;
(o) a fully executed copy of the Maynbridge Intercreditor Agreement;
(p) no Default or Event of Default (as such terms are defined in the Maynbridge Intercreditor Agreement) shall have occurred as of the date of such Loan Advance; and
(q) such other conditions and/or documents or instruments as the Agent may reasonably require The conditions set forth in paragraphs (g) and (q) above are referred to herein as the “Cortland Conditions”).
Appears in 1 contract
Samples: Credit Agreement
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Lender's willingness to make consider making the initial Advance is shall be subject to the fulfillment, to condition precedent that the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent Lender shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrowerfollowing, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretionthe Lender:
(a) This Agreement, properly executed by the Borrower;
(lb) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material CarrierThe Revolving Note, properly executed by the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(mc) Agent shall have received a certificate from an officer of Deposit Account Control Agreement(s), properly executed by the Borrower and each bank at which the Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protestmaintains deposit accounts;
(nd) Agent shall have received a certificate The Borrower’s financial budget for the 12-month period from an officer of each Borrower certifying that the initial Advance to the best satisfaction of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the LendersLender;
(oe) Agent shall Current searches of appropriate filing offices showing that (i) no Liens have received a letter from Chase Equipment Leasing, Inc. ("Chase"), been filed and remain in form and substance satisfactory to each Lender, acknowledging that Chase's liens effect against the Collateral in the Equipment leased by United States, (ii) the Borrower from Chase does not extend has duly filed in the State of Nevada (A) all financing statements necessary to perfect the security interests in the Borrower’s Accounts and the Borrower’s General Intangibles, and (B) a financing statement recording the Security Interest in 35% of the Borrower’s Equity Interests in each of its wholly-, directly-owned Subsidiaries, to the Accounts generated extent the Security Interest is capable of being perfected by such Equipmentfiling;
(pf) Agent shall have received payment A certificate of all accrued the Borrower's Secretary or Assistant Secretary certifying that attached to such certificate are (i) the resolutions of the Borrower's Directors, authorizing the execution, delivery and unpaid Lender Group Expensesperformance of the Loan Documents, (ii) true, correct and complete copies of the Borrower's Constituent Documents, and (iii) examples of the signatures of the Borrower's officers authorized to execute and deliver the Loan Documents and other instruments, agreements and certificates, including Advance requests, on the Borrower's behalf;
(qg) Agent shall have received a certificate from an officer An opinion of each Borrower certifying that there has been no Material Adverse Change counsel to the Borrower, Xxxxxx & Xxxxxxxx LLP, addressed to the Lender;
(h) A fairness opinion, addressed to the Lender;
(i) The documents set forth in the financial condition of such Borrower or the Collateral since July 31, 1998Section 4.2 below; and
(rj) all Such other documents and legal matters as the Lender in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselits sole discretion may require.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Dateprecedent being satisfied:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the The Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;the Lender:
(li) Agent This Agreement and Agent's counsel shall have been provided with a the Note, each duly executed by the Borrower and the Guarantors.
(ii) A copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, ROF with terms satisfactory to the Lender and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified duly approved by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;the Brazilian Central Bank (concluído).
(miii) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment Certified copies of all accrued governmental and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents third party consents and legal matters approvals necessary in connection with the transactions contemplated by the Transaction Documents, if any.
(iv) Certified copies of (A) documents evidencing the taking of all necessary action to authorize this Agreement shall have been deliveredand the other Transaction Documents and (B) the constitutive documents of the Borrower and each Guarantor.
(v) A certificate of a duly authorized officer of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower or such Guarantor (or other empowered Persons) authorized to sign the Transaction Documents and each other document to be delivered thereunder.
(vi) A favorable opinion of Debevoise & Xxxxxxxx LLP, executedNew York counsel to the Borrower and the Guarantors, or recorded and shall be in form and substance reasonably satisfactory to Agentthe Lender.
(vii) A favorable opinion of Xxxxx X. Xxxxxx, each Chief Legal Counsel to the Borrower, in form and substance reasonably satisfactory to the Lender.
(viii) A letter from the Process Agent in substantially the form of Exhibit C or any other form approved by the Lender, agreeing to act as Process Agent on behalf of the Borrower and their respective counselthe Guarantors.
(ix) A certificate of the Borrower, in substantially the form set out in Exhibit D, signed on behalf of the Borrower by its authorized representative, certifying (A) the truth and correctness on and as of the Closing Date of the representations and warranties made by the Borrower and each Guarantor in each Transaction Document as though made on and as of the Closing Date and (B) the absence of any event occurring and continuing that constitutes a Default.
(x) Evidence of the payment by the Borrower of all fees, costs and expenses of the Lender pursuant to this Agreement and any taxes then due and payable in connection herewith, to the extent invoiced (including reasonable fees, charges and expenses of special New York counsel and special Brazilian counsel to the Lender), which shall be deducted from the proceeds of the initial Advance.
(xi) Such other documents relating to the Borrower and the Guarantors or the Transaction Documents as the Lender shall have requested.
(b) No law, regulation or order shall be applicable in the judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Transaction Documents.
Appears in 1 contract
Samples: Loan and Guaranty Agreement (Net Servicos De Comunicacao S A)
Conditions Precedent to the Initial Advance. The obligations of each Lender under this Agreement and the obligation of the each Lender Group (or any member thereof) to make the initial Initial Advance is shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before precedent. On the Closing Date:
(a) All terms, conditions and documentation in connection with this Agreement shall be acceptable to the Closing Date shall occur on or before October 15, 1998;Lenders.
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary The making of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;Available Commitment shall not contravene any Law applicable to Administrative Agent or any Lender.
(c) Agent Each Lender shall have received each a Certificate from an Authorized Officer stating that no Material Adverse Change, as determined by the Lenders, shall have occurred and be continuing in the business, assets, prospects or financial condition of the following documentsbusinesses of the Borrower, duly executedthe Parent and the Restricted Subsidiaries since September 30, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 391999.
(d) Agent All proceedings of the Borrower, the Parent and the Restricted Subsidiaries taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall have received a certificate from the Secretary of each Borrower attesting be reasonably satisfactory in form and substance to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent Lenders. Each Lender shall have received copies of each Borrower's Governing Documents, as amended, modified, all documents or supplemented to the Closing Date, certified by the Secretary of other evidence that it may reasonably request in connection with such Borrower;transactions.
(fe) Agent Each Lender shall have received a certificate an executed copy of status with respect to each Borrowerthis Agreement, dated as of a date within a reasonable proximity to the Closing Date, such certificate and all documents required to be issued by the appropriate officer of the jurisdiction of organization of such Borrowerdelivered pursuant thereto, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent as well as its respective Notes, duly completed and correct. The Lenders shall have received certificates copies of status with respect to each the Fee Letters signed by the Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer applicable. Each of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel following shall have been provided with a copy delivered to Administrative Agent on behalf of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to Administrative Agent, Special Counsel and each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend Lender to the Accounts generated extent required by Administrative Agent: each other Loan Paper requested by Administrative Agent, including, without limitation, all guarantees, pledge agreements, security agreements, mortgages, deeds of trust, collateral assignments and other agreements granting any interest in any Collateral.
(f) The Borrower shall have delivered to each Lender a Certificate, dated as of the Closing Date, executed by an Authorized Officer on behalf of the Parent, the Borrower and its Restricted Subsidiaries, certifying that (i) no Default or Event of Default has occurred and is 42 49 continuing, (ii) the representations and warranties set forth in Article V hereof are true and correct, (iii) each of the Parent, the Borrower and its Restricted Subsidiaries has complied with all agreements and conditions to be complied with by it under the Loan Papers by such Equipmentdate, (iv) that the attached resolutions for each of the Parent, the Borrower and its Restricted Subsidiaries are the true, accurate and complete resolutions authorizing the corporate restructuring, the incurrence and performance of the Facility and the Loan Papers, (v) that the attached copies of certified articles of incorporation, or other articles of organization, certificates of good standing, certificates of existence and incumbency certificates for each of the Parent, the Borrower and its Restricted Subsidiaries are (A) not more than 30 days old and certified by the appropriate secretary of state or other governmental organization and (B) represent the true and accurate certificate for each such entity, and (vi) the attached copies of by-laws or other organizational documents represent the true and accurate by-laws or other organizational documents for each of the Parent, the Borrower and its Restricted Subsidiaries in effect on the Closing Date.
(g) Each Lender shall have received opinions of Long Aldrxxxx & Xormxx XXX, corporate counsel to the Parent, the Borrower and the Restricted Subsidiaries, dated as of the Closing Date, acceptable to the Lenders and otherwise in form and substance satisfactory to the Lenders and Special Counsel.
(h) Each Lender shall have evidence satisfactory that the Borrower, the Parent and each of their Subsidiaries has reasonably anticipated that all computer applications that are material to their respective businesses and operations will on a timely basis be able to perform properly date-sensitive functions and will make an inquiry of each of their key suppliers, vendors and customers as to whether such Persons will on a timely basis be Year 2000 Compliant in all material respects and, on the basis of that inquiry, believe that all such Persons will be so compliant;
(pi) Agent shall have received payment All proceedings of all accrued the Parent, the Borrower and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer the Subsidiaries of each the Parent and the Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters taken in connection with the transactions contemplated by this Agreement shall have been deliveredhereby, executedand all documents incidental thereto, or recorded and shall be satisfactory in form and substance satisfactory to Agent, each Lender. The Administrative Agent and each Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions. No Material Adverse Change, as determined by the Lenders, shall have occurred and their respective counselbe continuing in the financial markets. The Borrower shall have paid all fees, costs and expenses (including the fees of Special Counsel) incurred by the Lenders in connection with the closing of the Facility.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Foothill to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Foothill and their respective its counsel, of each of the following conditions on or before the Closing Date:
(a) the The Closing Date shall occur on or before October 15March 31, 19982000;
(b) Agent Foothill shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsfixture filings;
(c) Agent Foothill shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement LetterLockbox Agreements;
(ii) the Pay-Off Disbursement Letter;
(iii) UCC termination statements and other documentation evidencing the Suretyship Agreementtermination of all Liens in and to the properties and assets of Borrower other than Permitted Liens;
(iv) the Fee LetterCopyright Security Agreement;
(v) the Agents' Side LetterPatent Security Agreement;
(vi) the Intercompany Subordination Trademark Security Agreement;
(vii) the Stock Pledge Agreement, together with the original shares of Stock that are the subject of the Liens created thereunder and stock powers, executed in blank, with respect thereto;
(viii) Termination statements relative to all financing statements filed by Sprint Communicationsthe Collateral Assignment of Rights, together with the original promissory notes that are the subject thereof;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.)the Guaranty;
(x) the Hale Xxxordination Guarantor Security Agreement;; and
(xi) the Customer List Escrow Intercompany Subordination Agreement; and 39;
(d) Agent Foothill shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent Foothill shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent Foothill shall have received a certificate of status with respect to each Borrower, dated as within 10 days of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent Foothill shall have received certificates of status with respect to each Borrower, each dated as within 15 days of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent Foothill shall have received a certificate from the Secretary of each Subsidiary of Borrower attesting to the resolutions of such Subsidiary's Board of Directors authorizing its execution, delivery, and performance of each Loan Document to which such Subsidiary is a party and authorizing specific officers of such Subsidiary to execute the same;
(i) Foothill shall have received copies of each of Borrower's Subsidiary's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Subsidiary;
(j) Foothill shall have received a certificate of status (or the applicable foreign equivalent, if any) with respect to each Subsidiary of Borrower, in each case, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Subsidiary, which certificate shall indicate that such Subsidiary is in good standing in such jurisdiction;
(k) Foothill shall have received certificates of status (or the applicable foreign equivalent, if any) with respect to each Subsidiary of Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which the failure of such Subsidiary to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Subsidiary is in good standing in such jurisdictions;
(l) Foothill shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section SECTION 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, Foothill and their respective its counsel;
(im) Agent Foothill shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement Agreements relative to Borrower's location facilities located in QuincyMountain View, MassachusettsCalifornia, and Beaverton, Oregon;
(kn) Agent Foothill shall have received opinions an opinion of Borrower's counsel in form and substance satisfactory to Agent and each Lender Foothill in their its sole discretion;
(lo) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent Foothill shall have received a certificate from an the chief financial officer of each Borrower certifying that all tax returns required to be filed such by Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(np) Agent Foothill shall have received a certificate from an officer copy of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates10-K for its fiscal year ending December 31, except such complaints that have been fully disclosed to 1999, certified as being true, correct, and complete, by the Lenders Secretary of Borrower, and are the same shall be satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), Foothill in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expensesits sole discretion;
(q) Agent Foothill shall have received Borrower's Projections for its fiscal year ending December 31, 2000, on a month-by-month basis,
(r) Foothill shall have received copies of all of the Sales Agency Agreements, certified as being true, correct, and complete by the Secretary of Borrower, and the same shall be satisfactory to Foothill in its sole discretion;
(s) Foothill shall have received copies of each of Borrower's material license agreements (whether Borrower is the licsenor or licensee under such license agreement) certified as being true, correct, and complete by the Secretary of Borrower, and the same shall be satisfactory to Foothill in its sole discretion;
(t) Foothill shall have received a certificate from an officer copy of each that certain Investment Agreement between Borrower certifying that there has been no Material Adverse Change and New Century Hospitality Network, Inc., dated as of July 30, 1999, certified as being true, correct, and complete by the Secretary of Borrower, and the same shall be satisfactory to Foothill in the financial condition its sole discretion;
(u) Borrower shall have Excess Availability of such Borrower or the Collateral since July 31, 1998not less than $10,000,000; and
(rv) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, Foothill and their respective its counsel.
Appears in 1 contract
Samples: Loan and Security Agreement (Network Computing Devices Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Foothill to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Foothill and their respective its counsel, of each of the following conditions on or before the Closing Date:
(a) the Effective Date shall occur on or before March 15, 1997;
(b) Foothill shall have received, on or before the Effective Date, the $225,000 installment of the signing fee due and payable on the Effective Date in accordance with Section 2.8(a);
(c) Foothill shall have received, on or before the Fee Date, the Suretyship Agreement, duly executed, and such document shall be in full force and effect;
(d) the Closing Date shall occur on or before October April 15, 19981997;
(be) the Existing Lender Group Agent shall have received all financing executed and delivered the Paid-Off Letter, together with UCC termination statements and fixture filings required by other documentation evidencing the termination of all Liens in favor of the Existing Lender Group, duly executed by Group or the Existing Lender Group Agent in respect of the properties and assets of any Borrower, and Agent ;
(f) Foothill shall have received searches reflecting the filing of its financing statements with respect to the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsCollateral;
(cg) Agent Foothill shall have received each of the following documents, duly executed, on or before the Closing Date, and each such document shall be in full force and effect:
(i) the Pledge Agreement;
ii) the Trademark Security Agreement;
iii) the Disbursement Letter;
(iiiv) the PayZPDI Notification and Acknowledgment;
v) the Clearinghouse Notifications for each Clearinghouse (other Zero Plus Dialing, Inc. d/b/a U.S. Billing), if any, used by a Borrower as of the Closing Date;
vi) the Carrier Non-Off LetterOffset and Consent to Assignment Agreements in respect of each of the Material Carriers;
vii) the Lockbox Agreements; and
viii) the Intercreditor Agreements;
(iiih) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent Foothill shall have received possession of the Pledged Shares together with duly executed blank stock powers with respect thereto.
(i) Foothill shall have received, dated within 10 days before the Closing Date, a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;of
(ej) Agent Foothill shall have received received, within 10 days before the Closing Date, copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(fk) Agent Foothill shall have received received, within 10 days before the Closing Date, a certificate of status with respect to each Borrower, dated as within 10 days of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(gl) Agent Foothill shall have received received, within 15 days before the Closing Date, certificates of status with respect to each Borrower, each dated as within 15 days of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute have a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(hm) Agent Foothill shall have received, within 5 days before the Closing Date, an opinion of each Borrower's counsel in form and substance satisfactory to Foothill;
(n) Foothill shall have received, on or before the Closing Date, a memorandum in form and substance satisfactory to Foothill, from local counsel acceptable to Foothill and licensed in the below-referenced States that shall satisfactorily address the priority of Foothill's prior perfected Liens on the Collateral as against municipal or state tax Liens arising, or that may in the future arise, under the respective laws of the States of California, Florida, Illinois, New York, Ohio, Texas, and Washington, with respect to taxes (such as, without limitation, excise taxes) that in any way relate to the provision of telecommunications services;
(o) Foothill shall have received, within 10 days before the Closing Date, copies of the Subordinated Notes Indenture and the ZPDI Billing Agreement, together with a certificate of the Secretary of Midcom certifying each of the same to be a true and correct and complete copy thereof;
(p) Foothill shall have received and reviewed, and shall have expressed no objection to, a written business plan for the Borrowers with respect to the Borrowers' fiscal years 1997, 1998, 1999, and 2000;
(q) Foothill shall have completed a field survey by its examiners, and the results shall be acceptable to Foothill;
(r) Foothill shall have completed an updated audit, and the results shall be acceptable to Foothill;
(s) Foothill shall have received written notice from the Borrowers specifying the requested date of such initial Advance, which requested date shall not be less than 3 weeks after the date Foothill receives such notice;
(t) Foothill shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.106.10 hereof, the form and substance of which shall be satisfactory to Agent, each Lender, Foothill and their respective its counsel;
(iu) Agent Foothill shall have received the Closing Date Business Plan certified by an officer Collateral Access Agreements in respect of Borrower as being such officer's good faith best estimate each of the financial performance of Borrower during the period covered therebylocations set forth on Schedule 3.1(u);
(jv) Agent Foothill shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions Certificate of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy the Chief Financial Officer of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower Midcom certifying that all tax returns required to be filed such by each Borrower have been timely filed and all taxes upon such each Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(nw) Agent Foothill and Foothill's counsel shall have been provided with a true and complete copy of each Billing Services Agreement in effect on the Closing Date and shall have had a reasonable opportunity to review each such Billing Services Agreement, and Foothill shall have advised the Borrowers as to whether or not each such Billing Services Agreement is an Approved Billing Services Agreement;
(x) Foothill and Foothill's counsel shall have been provided with a true and complete copy of each Carrier Agreement in respect of a Material Carrier and shall have had a reasonable opportunity to review each such Carrier Agreement, and Foothill shall have expressed no objection to the terms of each such Carrier Agreement;
(y) Foothill and its counsel shall have had an opportunity to review the status of (i) the Frontier litigation filed in the United States District Court for the Eastern District of Michigan (Southern Division) as Case No. 96-CV-73856-DT, and (ii) that certain securities class action lawsuit filed in the United States District Court for the Western District of Washington as Case No. C96-614D, and the results of such review shall have been satisfactory to Foothill;
(z) Foothill shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase")certificate, in form and substance satisfactory to Foothill and duly executed by each Lenderof the Chief Financial Officer and the General Counsel of Midcom, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend stating, to the Accounts generated by best of such Equipmentofficers' information and good faith belief, the maximum amount of liability of the Borrowers that the Frontier litigation filed in
(aa) Foothill and Foothill's counsel shall have been provided with a true and complete copy of each of the material contractual obligations of each Borrower in respect of Indebtedness (including the Subordinated Notes Indenture and the respective financing documents with Key Bank and Comdisco) and shall have had a reasonable opportunity to review each such material contractual obligation, and Foothill shall have expressed no objection to the terms of each such material contractual obligation;
(pab) Agent Foothill shall have received payment evidence, satisfactory to Foothill, of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer the ability of each Borrower certifying that there has been no Material Adverse Change to age accounts payable in the financial condition of such Borrower or the Collateral since July 31, 1998a manner satisfactory to Foothill; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Appears in 1 contract
Samples: Loan and Security Agreement (Midcom Communications Inc)
Conditions Precedent to the Initial Advance. The obligations of each Lender under this Agreement and the obligation of the each Lender Group (or any member thereof) to make the initial Initial Advance is shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions precedent that on or before the Closing Date:
(a) the Closing Date All terms, conditions and documentation in connection with this Agreement shall occur on or before October 15, 1998;be acceptable to Lenders.
(b) The making of the Commitment shall not contravene any Law applicable to Administrative Agent or any Lender.
(c) Each Lender shall have received a Certificate from an Authorized Officer stating that no material adverse change in the business, assets, prospects, or financial condition of Company and its Subsidiaries since the December 31, 1997 financial statements provided to Lenders. Administrative Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, financial information regarding Company and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed Subsidiary of Company requested by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39it.
(d) Agent Each Lender shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance an executed copy of this Agreement and the other Loan Documents to which such Borrower is a party its respective Note, duly completed and authorizing specific officers of such Borrower to execute the same;
(e) Agent correct. Lenders shall have received copies of each Borrower's Governing Documentsthe Fee Letters signed by Company, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer applicable. Each of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel following shall have been provided with a copy delivered to Administrative Agent on behalf of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to Administrative Agent, Special Counsel and each Lender. The Guaranty Agreement executed by each Guarantor and a Subordination Agreement executed by each payee of an Intercompany Note.
(e) Company shall have delivered to Administrative Agent a Certificate, acknowledging dated the Closing Date, executed by an Authorized Officer, certifying that, to such Authorized Officer's knowledge, (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in ARTICLE IV hereof are true and correct in all material respects, and (iii) Company and each Subsidiary of Company has complied with all agreements and conditions to be complied with by it in all material respects under the Loan Papers by such date.
(f) Company and each Guarantor shall have each delivered to Administrative Agent on behalf of Lenders a Secretary's Certificate, dated the Closing Date, certifying (i) that Chase's liens attached copies of the certificates of organization certified by the Secretary of States of the appropriate states, and bylaws are true and complete, and in full force and effect, without amendment except as shown, and (ii) that a copy of the Equipment leased by Borrower from Chase does resolutions authorizing execution and delivery of this Agreement and any Loan Papers, as appropriate, are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not extend been amended, modified, or revoked, and constitute all resolutions adopted with respect to this loan transaction. Administrative Agent and Lenders may conclusively rely on the certificate delivered pursuant to this subsection until they receive notice in writing to the Accounts generated by such Equipment;contrary.
(pg) Administrative Agent shall have received payment an opinion or opinions of all accrued counsel to Company and unpaid Lender Group Expenses;its Subsidiaries, dated the Closing Date, acceptable to Lenders and otherwise in form and substance satisfactory to Lenders and Special Counsel, with respect to this loan transaction and otherwise, including, without limitation, opinions (i) to the valid and binding nature of the Loan Papers, (ii) to the power, authorization and corporate matters of each such Person taken in connection with the transactions contemplated by the Loan Papers, (iii) that the execution, delivery and performance by Company and the Subsidiaries of Company of the respective Loan Papers does not violate any of the terms of Company's or any such Subsidiary's agreements, and (iv) to such other matters as are reasonably requested by Special Counsel.
(qh) Administrative Agent shall have received a certificate from an officer received, on behalf of Lenders, each Borrower certifying that there has been no Material Adverse Change of the following, in the financial condition of such Borrower or the Collateral since July 31, 1998; andform and substance satisfactory to Administrative Agent and Special Counsel:
(ri) evidence that all other documents proceedings of Company and legal matters its Subsidiaries taken in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be reasonably satisfactory in form and substance to Lenders and Special Counsel; and each Lender shall have received copies of all documents or other evidence which Lenders or Special Counsel may reasonably request in connection with this facility, including without limitation the resolutions of the Board of Directors of Company and each Subsidiary, and the requisite authorizations of all other Persons necessary to authorize the transactions contemplated herein, certified to be true and correct by an Authorized Officer;
(ii) payment of all fees, costs and expenses (including, without limitation, attorneys' fees of Special Counsel due to be paid on or through the Closing Date); and
(iii) a Compliance Certificate computed after giving effect to the Initial Advance.
(i) All corporate proceedings of Company and its Subsidiaries taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall be satisfactory in form and substance to Agent, each Lender, . Administrative Agent and their respective counseleach Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
Appears in 1 contract
Samples: Credit Agreement (Franchise Finance Corp of America)
Conditions Precedent to the Initial Advance. (a) The obligation Issuer shall not authorize for sale and the Purchasers shall not be obligated hereunder to purchase a TAD Series Compound Interest Bond on the Closing Date unless the representations and warranties of the Lender Group (Issuer contained herein shall be true and correct, there shall be no Event of Default under any of the Bond Documents and there shall be no event that with the passage of time or any member thereof) the giving of notice or both would become an Event of Default, in each case unless waived by the Developer. The Issuer shall provide a certificate of one or more officers of the Issuer and such other proof as the Purchasers shall reasonably require to establish the truth of the representations and warranties of the Issuer set forth in Section 2.01 hereof. In addition, the Developer shall not be obligated to make the initial Initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on unless it has received or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by waived the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effectright to receive:
(i) a certified copy of the Disbursement LetterBond Ordinance and all other ordinances and resolutions of the Issuer authorizing the issuance of the Master Draw-Down Gulch XXX Xxxx and the TAD Series Compound Interest Bond and the execution, delivery and performance of the Bond Documents;
(ii) a photocopy of the Payexecuted Master Draw-Off LetterDown Gulch XXX Xxxx;
(iii) a photocopy of the Suretyship Agreementexecuted TAD Series Compound Interest Bonds;
(iv) original executed counterparts of the Fee LetterMaster Indenture and the First Supplemental Indenture;
(v) the Agents' Side Letteroriginal executed counterpart of this Purchase Agreement;
(vi) original executed counterpart of the Intercompany Subordination Tax Custody Agreement;
(vii) original executed counterpart of the Stock Pledge TAD Development Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communicationsoriginal executed counterparts of the Xxxxxx County Intergovernmental Agreement and the School Board Intergovernmental Agreement;
(ix) WorldCom Subordination Agreement (or termination statements relative copies of the Financing Statements filed to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.)perfect the Security Interests;
(x) a certified copy of the Hale Xxxordination AgreementCity Resolution, including the Westside Resolution and all amendments;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary certified copies of each Borrower attesting to the resolutions of such Borrower's the Board of Directors authorizing its executionCommissioners of Xxxxxx County, deliveryGeorgia consenting to the inclusion of Xxxxxx County ad valorem taxes in the computation of the tax allocation increment for the Westside TAD through December 31, 2038, including Resolution No. 98-1452 adopted on November 18, 1998, Resolution No. 05-0851 adopted on July 20, 2005 and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the sameResolution No. 08-1010 adopted on December 17, 2008;
(exii) Agent shall have received certified copies of each Borrower's Governing Documentsthe resolutions of the Atlanta Independent School System, as amendedacting through the Atlanta Board of Education, modified, or supplemented consenting to the Closing Dateinclusion of the portion of positive tax increment derived from educational ad valorem taxes in the computation of the tax allocation increment for the Westside TAD, certified by including the Secretary of such Borrowerresolutions adopted on November 8, 1998 and September 12, 2005;
(fxiii) Agent shall have received a copy of the transcript of the proceeding in the Xxxxxx County Superior Court validating the Master Draw-Down Gulch XXX Xxxx, the TAD Series Compound Interest Bonds and the security therefor, including the Bond Ordinance, this Purchase Agreement, the other Bond Documents and the Act;
(xiv) the opinion of Bond Counsel to the effect that the Master Draw-Down Gulch XXX Xxxx and the TAD Series Compound Interest Bonds are valid and binding obligations of the Issuer and the interest on any Tax-Exempt Bonds is excludable from gross income of the owners thereof for federal tax purposes;
(xv) an executed counterpart of the Non-Arbitrage Certificate of the Issuer;
(xvi) an opinion of the City Attorney, in substantially the form attached hereto as Exhibit A;
(xvii) an opinion of Bond Counsel, in substantially the form attached hereto as Exhibit B;
(xviii) a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer one or more officers of the jurisdiction Issuer and such other proof as the Developer may reasonably require to establish the truth of organization of such Borrower, which certificate shall indicate that such Borrower is the representations and warranties set forth in good standing in such jurisdictionSection 2.01 hereof;
(gxix) Agent a photocopy of the [Feasibility Report] of MuniCap regarding projected Tax Allocation Increments; and
(xx) such other or further documents, data or information as the Developer or its counsel may reasonably request.
(b) The Issuer shall not be obligated to issue a TAD Series Compound Interest Bond on the Closing Date unless the Issuer and its counsel have received certificates of status with respect (and approved as appropriate) or waived its right to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;receive:
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate copies of the financial performance articles of Borrower during organization and operating agreement or other organizational documents of the period covered therebyDeveloper, a certificate of good standing in Delaware of the Developer and a certificate of authority to transact business in State of Georgia of the Developer;
(jii) Agent shall have received a Collateral Access Agreement relative resolution (or unanimous written consent) of the appropriate governing body of the Developer approving and authorizing the execution and delivery of the Bond Documents to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with which the Developer is a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase")party, in form and substance reasonably satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such EquipmentIssuer;
(piii) Agent shall have received payment an opinion of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31Developer’s Counsel, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory reasonably acceptable to Agentthe Issuer and Bond Counsel, as to the enforceability of the Bond Documents against the Developer;
(iv) a fully completed and executed Funding Notice and Requisition;
(v) an original investor letter executed by each LenderPurchaser, in substantially the form set forth in the First Supplemental Indenture;
(vi) a certificate dated the Closing Date, of one or more officers of the Trustee, to the effect that: (1) the Trustee is a state banking corporation organized and existing under the laws of the State of Alabama and is authorized to exercise trust powers in the State of Georgia; (2) the Trustee has full corporate power and authority, including all necessary trust powers, to execute and deliver this Purchase Agreement and the Indenture, to perform its obligations thereunder and to authenticate the TAD Series Compound Interest Bonds; (3) this Purchase Agreement and the Indenture constitute legal, valid and binding obligations of the Trustee, enforceable against the Trustee in accordance with their respective counselterms (except as limited by bankruptcy, insolvency or other similar laws affecting the rights and remedies of creditors generally and general principles of equity); and (4) the TAD Series Compound Interest Bonds issued on the Closing Date have been duly authenticated by an authorized officer of the Trustee;
(vii) a certificate dated the date of Closing, of one or more officers of the Developer, to the effect that: (1) the Developer is a limited liability company duly organized and validly existing and in good standing under the laws of the State of Delaware and is duly authorized to do business in the State of Georgia; (2) the Developer has full power and authority to execute and deliver the Bond Documents to which the Developer is a party and to enter into and perform its obligations under the Bond Documents to which the Developer is a party; (3) the Developer has duly authorized, executed and delivered the Bond Documents to which the Developer is a party and such documents constitute legal, valid and binding obligations of the Developer enforceable against the Developer in accordance with their respective terms (except as limited by bankruptcy, insolvency or other similar laws affecting the rights and remedies of creditors generally and general principles of equity); (4) the representations set forth in Section 2.03 hereof are true and correct in all material respects as if made as of the Closing Date; (5) as of the Closing Date, no event has occurred and is continuing that with the lapse of time or giving of notice, or both, would constitute a “default” or an “Event of Default” under any of the Bond Documents; (6) the Developer has complied in all material respects with each of its covenants and agreements required in this Purchase Agreement to be complied with at or prior to the Closing Date and (7) no proceedings have ever been taken, are being taken, or are contemplated as of the Closing Date, by the Developer under the United States Bankruptcy Code or under any similar law or statute of the United States or the State of Georgia;
(viii) such other or further documents, data or information with respect to the Developer as the Issuer or its counsel may reasonably request.
Appears in 1 contract
Samples: Draw Down Bond Purchase Agreement
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Foothill to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Foothill and their respective its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15March 30, 19982001;
(b) Agent Foothill shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsfixture filings;
(c) Agent Foothill shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement LetterLockbox Agreement in connection with Union Bank of California, N.A.;
(ii) the Pay-Off Disbursement Letter;
(iii) the Suretyship Intellectual Property Security Agreement;
(iv) the Fee LetterStock Pledge, together with all certificates representing the shares of Stock pledged thereunder, other than shares of P-Com Gmbh, as well as stock powers endorsed in blank with medallion signature guaranties;
(v) the Agents' Side Letter;Intercompany Subordination Agreement; and
(vi) the Intercompany Subordination AgreementDue Diligence Letter;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent Foothill shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such each Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent Foothill shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent Foothill shall have received a certificate of status with respect to each Borrower, dated as within 10 days of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent Foothill shall have received certificates of status with respect to each Borrower, each dated as within 15 days of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent Foothill shall have received a certificate of insurance and certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section 6.106.9, the form and substance of which shall ----------- be satisfactory to Agent, each Lender, Foothill and their respective its counsel;
(i) Agent Foothill shall have received the Closing Date Business Plan certified by an officer opinion of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of each Borrower's counsel in form and substance satisfactory to Agent and each Lender Foothill in their its sole discretion;
(lj) Agent and Agent's counsel Foothill shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrierreceived and approved P-Com's draft 10K for the fiscal year ending December 31, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement2000;
(mk) Agent Foothill shall have received a certificate certification from an officer the Chief Financial Officer of each the Administrative Borrower certifying confirming that all tax returns required to be filed such Borrower by Borrowers have been timely filed or that Borrowers have timely filed appropriate extensions and that the extension period has not yet lapsed, and all taxes upon such any Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(l) Borrowers must have not less than $10,000,000 of Excess Availability on the Closing Date;
(m) Foothill shall have reviewed Borrowers' contracts with Siemens AG, Winstar Equipm Orange CPCS, Lucent Technologies, Mercury One-2-One and other of Borrowers' contracts requested by Foothill, and Foothill shall have found them to be satisfactory;
(n) Agent Foothill shall have received a certificate from an officer copies of each Borrower certifying that the Senior Convertible Notes, as well as any other debt instruments issued by any Borrower, and Foothill shall have found them to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lendersbe satisfactory;
(o) Agent Foothill shall have received a letter from Chase Equipment Leasing, Inc. ("Chase")the Closing Date Business Plan, in form and substance satisfactory acceptable to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998Foothill; and
(rp) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, Foothill and their respective its counsel.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Bank to make the its initial Advance is subject to the fulfillment, to conditions precedent that the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions Bank shall have received on or before the Closing Datedate of such initial Advance, to the extent same has not previously been received all of the following, in form and substance satisfactory to the Bank and in such number of counterparts as may be reasonably requested by the Bank:
(a) each Note duly executed and delivered by the Closing Date shall occur on or before October 15, 1998relevant Borrower;
(b) Agent shall have received all financing statements this Agreement duly executed and fixture filings required delivered by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsCredit Parties;
(c) Agent shall have received each the Note and Deed of Trust Modification Agreements duly executed and delivered by the relevant Credit Parties to the Bank;
(d) the Amended and Restated Security Agreement duly executed and delivered by the Credit Parties;
(e) the Patent Security Agreement duly executed and delivered by Proler Environmental Services, Inc.;
(f) the Amended and Restated Pledge Agreement duly executed and delivered by the appropriate Credit Parties party thereto;
(g) the Deeds of Trust duly executed and delivered by all of the following documentsparties holding title to the Mortgaged Properties;
(h) Mortgagee title insurance policies issued by title insurers satisfactory to the Bank in amounts satisfactory to the Bank (the "MORTGAGEE POLICIES") and assuring the Bank that the Deeds of Trust in respect of the Mortgaged Properties are valid and enforceable first priority mortgages on the respective Mortgaged Properties, duly executed, free and each such document clear of all defects and encumbrances except Permitted Liens. Such Mortgagee Policies shall be in full force form and effect:substance reasonably satisfactory to the Bank;
(i) appropriate endorsements to Mortgagee Policies if requested by the Disbursement LetterBank;
(j) the Appraisal, if required by Bank;
(k) the Environmental Reports and, depending upon the content and conclusion thereof, additional environmental reports, Phase II Audits and such other related information concerning the Mortgaged Properties as the Bank may require;
(i) executed financing statements for all jurisdictions as may be necessary or, in the reasonable opinion of the Bank, desirable to perfect the security interests created by the Security Documents and (ii) evidence that all other actions necessary or, in the Pay-Off Letterreasonable opinion of the Bank, desirable to perfect and protect the Liens created by the Security Documents have been taken;
(m) copies of surveys satisfactory to the Bank covering, all together, each tract or parcel of land (including all appurtenant easements) subject to the Deeds of Trust, satisfactory in form and substance to the Bank. In addition, the Bank shall have received such officer's certificates and other similar instruments relating to survey matters as the Bank may request;
(n) a Uniform Commercial Code search, tax search and judgment report of the appropriate records of the States of Texas, Delaware, and all other states in which a Borrower or any Joint Venture is conducting business satisfactory in form and substance to the Bank;
(o) all of the issued and outstanding stock of the Guarantors owned by any Credit Party together with related stock powers executed by the pledgor of such stock;
(p) a certificate of the president or a vice president and of the secretary or an assistant secretary of each Credit Party certifying, INTER ALIA, (i) true and correct copies of resolutions adopted by the Board of Directors of each such Credit Party, (A) authorizing the execution, delivery and performance by each such Credit Party of the Loan Documents to which it is or will be a party and, in the case of each Borrower, the borrowings thereunder, (B) approving the forms of the Loan Documents to which it is a party and which will be delivered at or prior to the date of the initial Advance and (C) authorizing officers of each such Credit Party to execute and deliver the Loan Documents to which it is or will be a party and any related documents, (ii) true and correct copies of the bylaws of each Credit Party that is a corporation, as amended to the date of such certificate, (iii) the Suretyship Agreement;
incumbency and specimen signatures of the officers of each such Credit Party executing any documents on behalf of it, (iv) the Fee Lettertruth of the representations and warranties made by such Credit Party in any Loan Document to which it is a party and which will be delivered at or prior to the date of the initial Advance, (v) the absence of any proceedings for the dissolution or liquidation of each such Credit Party, (vi) the absence of the occurrence and continuance of any Default or Event of Default with respect to each such Credit Party and (vii) that no event or condition has occurred since January 31, 1995 that would constitute a Material Adverse Effect;
(q) the favorable, signed opinion of Mayor, Day, Caldwell & Keeton, L.L.P., counsel xxx xxx Crxxxx Xarties, addressed to the Bank, as to such matters as the Bank may reasonably request;
(r) a Perfection Certificate executed by an Authorized Officer of each Credit Party;
(s) [Intentionally Omitted]
(t) payment of all reasonable fees and out-of-pocket expenses of the Bank and of Andrews & Kurth L.L.P., counsel to xxx Xxnk, xxx any local counsel retained by it;
(u) a Borrowing Base Certificate;
(v) copies of certificates of good standing and existence for each of the Agents' Side Letter;Credit Parties in the jurisdiction of its incorporation and certificates of authority to conduct business in each jurisdiction in which the failure to obtain same would constitute a Material Adverse Effect; and
(viw) such other documents as the Intercompany Subordination Agreement;
(vii) Bank may reasonably request relating to the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; existence and 39
(d) Agent shall have received a certificate from the Secretary good standing of each Borrower attesting to Credit Party, the resolutions of such Borrower's Board of Directors authorizing its executionauthorization, delivery, execution and performance delivery of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements and all other matters relevant hereto and thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel all in form and substance reasonably satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselBank.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) ------------------------------------------- each Bank to make the its initial Advance hereunder to the Company is subject to the fulfillmentoccurrence of or receipt by the Administrative Agent of the following, all in form and substance reasonably satisfactory to the satisfaction of Administrative Agent, each Lenderand, and their respective counselwhere relevant, of each of the following conditions on or before the Closing Dateexecuted by all appropriate parties:
(a) This Agreement (which includes the Closing Date shall occur on or before October 15, 1998Guaranty);
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches Appropriate Notes for each Bank reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettstheir respective Commitments;
(c) Agent The delivery of such third party consents, intercreditor agreements and other agreements as shall have received be reasonably requested by the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent;
(d) Each of the following documentsSecurity Documents granting a first and prior Lien or security interest on the Collateral to the Administrative Agent for the benefit of itself and the Banks as security for the Obligations, duly executed, substantially in the form of Exhibits 4.01(d)(i) and each such document shall be in full force and effect:(ii) hereto: ----------------------------
(i) The Security Agreement (the Disbursement Letter"Security Agreement") covering ------------------ substantially all of the Accounts and Inventory of the Company and each of its Domestic Subsidiaries existent as of the date hereof (except as set forth in such Security Agreement or other Security Documents which exclusions have been agreed to by the Majority Banks), accompanied by all documents, instruments and other items necessary to obtain and perfect a Lien thereon;
(ii) The Pledge Agreement (the Pay-Off Letter;"Pledge Agreement") pledging to the ---------------- Administrative Agent all Capital Stock owned by the Company or any Subsidiary in all Domestic Subsidiaries and 66% of the Capital Stock owned by the Company or any Subsidiary in all first tier Foreign Subsidiaries accompanied by original stock certificates evidencing such shares and executed stock powers, foreign registrations or other actions necessary to create a lien on such Capital Stock in favor of the Administrative Agent for the benefit of itself and the Banks; and
(iii) UCC-1 and UCC-3 Financing Statements and other documents or instruments necessary to perfect the Suretyship Agreement;Liens granted in the Security Documents and to eliminate any other Liens not permitted by Section ------- 7.04; -----
(ive) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary A Notice of each Borrower attesting Advance with respect to the initial Advance meeting the requirements of Section 2.03; ------------ (f) A certificate of the secretary, an assistant secretary or other Responsible Officer of the Company and each Guarantor certifying, inter alia, (i) true and complete copies of the resolutions of such Borrower's adopted by the Board of Directors of the Company and each of the Guarantors (A) authorizing its the execution, delivery, delivery and performance by the Company and each of its Subsidiaries of this Agreement and the other Loan Documents to which such Borrower it is or will be a party and, in the case of the Company, the Advances to be made hereunder, (B) approving the forms of the Loan Documents to which it is or will be a party and which will be delivered at or prior to the date of the initial Advance hereunder and (C) authorizing specific officers of such Borrower the Company and each of its Subsidiaries to execute and deliver the same;
(e) Agent shall have received copies of each Borrower's Governing DocumentsLoan Documents to which it is or will be a party and any related documents, as amendedincluding, modified, or supplemented to the Closing Date, certified any agreement contemplated by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection this Agreement, and (ii) the incumbency and specimen signatures of the officers of the Company and each agreement in respect of its Subsidiaries executing any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreementdocuments on its behalf;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Foothill to make the initial Advance is subject to the fulfillment, to the reasonable satisfaction of Agent, each Lender, Foothill and their respective its counsel, of each of the following conditions on or before the Closing Date:Date (except to the extent that Foothill, in its sole discretion, waives or postpones, in whole or in part, the satisfaction of any such condition(s)):
(a) Foothill shall have received satisfactory evidence that all existing copyrights of Borrower (other than Exempt Copyrights) have been registered with the Closing Date shall occur on or before October 15United States Copyright Office and that all such copyrights (other than Exempt Copyrights), 1998and any proceeds thereof, are specifically encumbered by the Copyright Security Agreement;
(b) Agent Foothill shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsfixture filings;
(c) Agent Foothill shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) a. the Disbursement LetterControl Agreements;
(ii) b. the Pay-Off LetterSecurities Issuance Agreement, together with the Warrants issuable thereunder on the Closing Date;
(iii) c. the Suretyship Copyright Security Agreement;
(iv) d. the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Trademark Security Agreement;
(vii) e. the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) f. the Hale Xxxordination Agreement;
(xi) the Customer List Source Code Escrow Agreement; and
g. the Lock Box Agreement(s) among the applicable Lockbox Bank, Foothill, and 39Borrower.
(d) Agent Foothill shall have received satisfactory evidence of termination by Prior Lender of its Liens in and to the properties and assets of Borrower;
(e) Foothill shall have received satisfactory evidence of the ability of Borrower manually to age its Accounts on a basis not less frequently than monthly;
(f) Foothill shall have received the original certificates representing or evidencing all of the Pledged Collateral (as defined in the Stock Pledge Agreement, which shall not exceed, with respect to any Subsidiary, the Applicable Number of Shares of Stock thereof), together with undated Stock powers or equivalent assignments with respect thereto duly endorsed in blank;
(g) Foothill shall have received a certificate from the Secretary (or Clerk) of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(eh) Agent Foothill shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Effective Date, certified by the Secretary (or Clerk) of such Borrower;
(fi) Agent Foothill shall have received a certificate of status with respect to each Borrower, dated as within 15 days of a date within a reasonable proximity to the Closing Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(gj) Agent Foothill shall have received certificates of status with respect to each Borrower, each dated as within 15 days of a date within a reasonable proximity to the Closing Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(hk) Agent Foothill shall have received a certificate of insurance, together with certified copies of the policies of insurance and the endorsements thereto, as that are required by Section 6.10, the form and substance of which shall be ------------ satisfactory to Agent, each Lender, Foothill and their respective its counsel;
(il) Agent Borrower shall have demonstrated to Foothill the ability of Borrower to provide reporting as to Accounts of Borrower and the aging thereof that is acceptable to Foothill, in the reasonable commercial exercise by Foothill of its credit judgment (or, if such condition has not yet been satisfied, Foothill may maintain a $1,000,000 reserve against Availability (in addition to any other reserves provided for or permitted under this Agreement) until such condition has been satisfied);
(m) Foothill shall have received the Closing Date Business Plan certified by an officer results of Borrower as being such officer's good faith best estimate reference checks on key management personnel of the financial performance of Borrower during the period covered therebyBorrower, which results shall be satisfactory to Foothill in its sole discretion;
(jn) Agent Foothill shall have completed "field surveys" in respect of Equipment and Inventory and received appraisals of the Equipment, and in each case the results of them shall be satisfactory to Foothill;
(o) Foothill shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions an opinion of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretionFoothill;
(lp) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent Foothill shall have received a certificate from an officer of each Borrower certifying satisfactory evidence that all tax returns required to be filed such by Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(nq) Agent Foothill shall have received a certificate from an officer of each Borrower certifying that evidence satisfactory to it that, after giving effect to the best of such initial advances to be made on the Closing Date and the outstanding fees and other Foothill Expenses charged to Borrower's knowledge there are no outstanding complaints against Loan Account hereunder from the Effective Date through the Closing Date, Borrower shall have not less than $5,000,000 of unrestricted cash, cash equivalents, or Availability, or any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenderscombination thereof;
(or) Agent Foothill shall have received a letter any copyright searches that it may require from Chase Equipment Leasing, Inc. the United States Copyright Office with respect to any copyrights ("Chase"), in form other than Exempt Copyrights) of Borrower and substance satisfactory such searches shall reflect to each Lender, acknowledging that ChaseFoothill's satisfaction Borrower's ownership of such copyrights free and clear of liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipmentor other adverse claims other than Permitted Liens;
(ps) Agent Foothill shall have received payment of all accrued such Collateral Access Agreements from lessors, warehousemen, bailees, and unpaid Lender Group Expensesother third persons as Foothill may require;
(qt) Agent Foothill shall have received a certificate from an officer satisfactory evidence that Borrower is not delinquent in respect of each Borrower certifying that there has been no Material Adverse Change any material obligations of Borrower;
(u) There shall not have occurred any material adverse change in the financial condition of Borrower (from the financial condition thereof as reflected in Borrower's most recent audited financial statements provided to Foothill prior to the Effective Date), nor shall there exist any material impairment of the value of the Collateral;
(v) Foothill's counsel shall have received and reviewed all material agreements to which Borrower is a party pursuant to which Borrower is the licensee of General Intangibles, or pursuant to which Borrower is obligated to pay royalties, and the results of such review shall be satisfactory to Foothill;
(w) Borrower or shall have given Foothill at least 30 days prior written notice of the Collateral since July 31date that Borrower wishes to obtain the first Advance under this Agreement, 1998to permit Foothill time to re-audit Borrower before such date, Borrower shall have provided Foothill a reasonable opportunity to conduct such audit, and such audit shall have been completed by Foothill; and
(rx) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, delivered or executed or recorded and shall be in form and substance satisfactory to Agent, each Lender, Foothill and their respective its counsel.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Initial Advance under this Agreement is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effectprecedent that:
(i) the Disbursement LetterAgent shall have received on or before the Initial Funding Date an Advance Request relating to the Initial Advance, and those documents listed on Schedule A-1 to this Agreement as required to be delivered on the Initial Funding Date, each in form and substance reasonably satisfactory to the Agent and the Lender;
(ii) the Pay-Off Letterrepresentations and warranties set forth in Section 3.1 and in Schedule C hereto are true and correct on the Closing Date and on the Initial Funding Date (except for any representations and warranties that speak of an earlier date, which such representations and warranties shall be true and correct as of such earlier date), before and after giving effect to the making of the Initial Advance and to the application of proceeds therefrom;
(iii) no Material Adverse Effect shall have occurred and be continuing or would result from the Suretyship Agreementmaking of the Initial Advance;
(iv) the Fee LetterCustodian shall have received on or before the Initial Funding Date all of the documents required to be included in the related Loan Files and other documents required to be delivered to it on or before the Initial Funding Date pursuant to the terms of this Agreement and the Custodial Agreement, and the Custodian shall have delivered to the Agent on or prior to the Initial Funding Date a certification as to such receipt;
(v) the Agents' Side LetterSeller shall have contributed Eligible Venture Loans to the Borrower on the Initial Funding Date with a Venture Loan Principal Balance of at least Thirty-Five Million Dollars ($35,000,000);
(vi) all other acts and conditions (including, without limitation, the Intercompany Subordination obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of this Agreement, the other Transaction Documents and all documents related hereto and thereto and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in compliance with all applicable laws;
(vii) no law or regulation applicable to Lender shall prohibit, and no order, judgment or decree of any federal, state or local court or Governmental Authority or any tax, licensing, accounting or regulatory body shall prohibit or enjoin, the Stock Pledge Agreementmaking of the Initial Advance by the Lender in accordance with the provisions hereof;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;no event has occurred and is continuing, or would result from the making of the Initial Advance, that would constitute an Early Amortization Event, an Event of Default or an Unmatured Event of Default; and
(ix) WorldCom Subordination Agreement (the proposed amount of such Advance is less than or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting equal to the resolutions amount of such Borrower's Board the Available Commitment and is in a minimum amount of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
Two Hundred Fifty Thousand Dollars (e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified$250,000), or supplemented to if the Closing Date, certified by the Secretary of such Borrower;
Available Commitment is less than Two Hundred Fifty Thousand Dollars (f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10$250,000), the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselAvailable Commitment.
Appears in 1 contract
Samples: Credit and Security Agreement (Horizon Technology Finance Corp)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) DaimlerChrysler to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, DaimlerChrysler and their respective its counsel, of each of the following conditions on or before the Closing Dateprecedent:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent The Bankruptcy Court shall have received entered the Financing Order in form and substance satisfactory to DaimlerChrysler, granting DaimlerChrysler, among other things, a first-priority, priming Lien on all financing statements and fixture filings required by of the Lender Group, duly executed by BorrowerCollateral, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document super-priority administrative expense claims. Such Financing Order shall be in full force and effect:
(i) the Disbursement Lettereffect and shall not have been reversed, stayed, modified or amended;
(iib) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent DaimlerChrysler shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(ec) Agent DaimlerChrysler shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Datesupplemented, certified by the Secretary of such Borrower;
(fd) Agent DaimlerChrysler shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(ge) Agent DaimlerChrysler shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be reasonably satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying evidence that all tax returns required to be filed such by Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(nf) Agent DaimlerChrysler shall have received a certificate from an officer all existing appraisals of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the LendersReal Property;
(og) Agent DaimlerChrysler shall have received a letter (or downloaded from Chase Equipment Leasing, Inc. ("Chase"EDGAR), all SEC Reports;
(h) DaimlerChrysler xxxxx have received Borrower's debtor-in-possession business plan, which shall include balance sheets, income statements, cash flow and availability projections and shall be in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998DaimlerChrysler; and
(ri) all All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to AgentDaimlerChrysler and its counsel; and
(j) The order shall also waive Borrower's or any other party's right to modify this financing arrangement without DaimlerChrysler's consent in any plan of reorganization or subsequent order and shall grant Lender relief from the automatic stay in Borrower's bankruptcy case upon five (5) business days prior written notice of a default to Borrower, each Lenderthe Official Committee of Unsecured Creditors and the Secured Creditors. The following shall be conditions precedent to all Advances hereunder:
(a) the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of such extension of credit, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case it shall be true and correct in all material respects as of such date);
(b) no Default or Event of Default shall have occurred and be continuing on the date of such extension of credit, nor shall either result from the making thereof; and
(c) no injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the extending of such credit shall have been issued and remain in force by any governmental authority against Borrower, DaimlerChrysler, or any of their respective counselAffiliates.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Agent and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 1527, 19982000;
(b) Agent shall have received all UCC searches against the Borrower and any of the Restricted Subsidiaries executing Subsidiary Security Agreements reflecting no Liens other than Permitted Liens, and fully executed financing statements and fixture filings required by the Lender Group, duly executed by Borrower, from Borrower and Agent shall have searches reflecting the filing each of its financing statements with the Secretary such Restricted Subsidiaries in favor of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsAgent for all relevant jurisdictions;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) a. the Lockbox Agreements;
b. the Disbursement Letter;
(ii) c. the Pay-Off Letter;
(iii) the Suretyship Collateral Agency Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) d. the Stock Pledge AgreementPledge, the Subsidiary Guaranties and the Subsidiary Security Agreements; and
e. all other Loan Documents;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of Borrower and each Restricted Subsidiary of Borrower executing a Subsidiary Guaranty or Subsidiary Security Agreement attesting to the resolutions of such BorrowerPerson's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower Person is a party and authorizing specific officers of such Borrower Person to execute the same;
(e) Agent shall have received copies of the Governing Documents of Borrower and each Borrower's Governing DocumentsRestricted Subsidiary of Borrower executing a Subsidiary Security Agreement, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such BorrowerPerson;
(f) Agent shall have received a certificate of status with respect to Borrower and each BorrowerRestricted Subsidiary of Borrower executing a Subsidiary Security Agreement, dated as or updated within 10 days of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such BorrowerPerson, which certificate shall indicate that such Borrower Person is in good standing in such jurisdiction;; Schedule 1, Pg. 48 55
(g) Agent shall have received certificates of status with respect to Borrower and each BorrowerSubsidiary of Borrower executing a Subsidiary Security Agreement, each dated as or updated within 15 days of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower Person is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each LenderAgent and its counsel, and their respective Agent shall have received such additional documents and information regarding Borrower's insurance arrangements as it shall request, all of which shall be satisfactory to Agent and its counsel;
(i) Agent shall have received duly executed certificates of title with respect to the Closing Date Business Plan certified Vehicles together with such releases of liens and applications therefor, as Agent shall reasonably require to enable the prompt processing of each such title by an officer of Borrower as being such officerthe appropriate governmental agency in order to properly reflect Agent's good faith best estimate Lien (for the benefit of the financial performance of Borrower during the period covered therebyLender Group) thereon;
(j) Agent shall have received a Collateral Access Agreement relative to an opinion of Borrower's location and its domestic Restricted Subsidiaries' counsel, in Quincy, Massachusettseach case in form and substance reasonably satisfactory to Agent in its sole discretion;
(k) Agent shall have received opinions Current Appraisals of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretionthe Vehicles;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, received all fees due and payable on the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier AgreementClosing Date;
(m) Agent shall have received a certificate from an officer calculation of each the Borrowing Base prepared by Borrower certifying that all tax returns required to be filed such and certified by the Chief Financial Officer of Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are as of the subject of a Permitted ProtestClosing Date;
(n) Agent shall have received a certificate from an officer all revisions, if any, of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission financial forecast and business assumptions for 2000, 2001 and 2002, together with such other information (financial or otherwise) as may be reasonably requested by Agent, all of which shall be in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders form and are substance reasonably satisfactory to Agent and the LendersAgent;
(o) Agent Borrower shall have received a letter from Chase Equipment Leasing, Inc. on the Closing Date ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in after taking into account the Equipment leased by Borrower from Chase does not extend payment of all fees owing to the Accounts generated by Agent on such Equipmentdate and the making of all Advances on such date, and with Borrower's accounts payable being no less current than reflected in Agent's most recent field survey) at least $25,000,000 of unrestricted cash on hand and excess Availability under Section 2.1(a);
(p) Agent Borrower shall have received payment provided Agent with a fully executed copy of all accrued and unpaid Lender Group Expensesthe Intercompany Agreement;
(q) Agent there shall not have received a certificate from an officer of each Borrower certifying that there has been no occurred any Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31June 30, 19982000; andand Schedule 1, Pg. 49 56
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, Agent and their respective its counsel.
Appears in 1 contract
Samples: Loan and Security Agreement (Vermont Transit Co Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) each Bank to make the its initial Advance hereunder to the Company is subject to the fulfillmentoccurrence of or receipt by the Agent of the following, all in form and substance satisfactory to the satisfaction of Agent, each Lenderand, and their respective counselwhere relevant, of each of the following conditions on or before the Closing Dateexecuted by all appropriate parties:
(a) this Agreement (which includes the Closing Date shall occur on or before October 15, 1998Guaranty);
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsone Note for each Bank;
(c) Landlord's lien waivers as required by the Agent shall have received in respect of all leased property;
(d) each of the following documentsSecurity Documents granting a first and prior (except for Liens permitted under Section 7.04) Lien or security interest on the Collateral to the Agent for the benefit of itself and the Banks as security for the Obligations, duly executed, substantially in the form of Exhibits 4.01(d)(i) and each such document shall be in full force and effect(ii) hereto:
(i) the Disbursement LetterSecurity Agreement (the "Security Agreement") covering substantially all of the accounts and inventory of the Company and each of its domestic Subsidiaries existent as of the date hereof (except as set forth in such Security Agreement or other Security Documents which exclusions have been agreed to by the Majority Banks), accompanied by all documents, instruments and other items necessary to obtain and perfect a Lien thereon;
(ii) the Pay-Off Letter;Pledge Agreement (the "Pledge Agreement") pledging to the Agent all stock owned by the Company or any Subsidiary in all domestic Subsidiaries accompanied by original stock certificates evidencing such shares and executed stock powers for such certificates; and
(iii) UCC-1 and UCC-3 Financing Statements and other documents or instruments necessary to perfect the Suretyship Agreement;Liens granted in the Security Documents.
(ive) A Notice of Advance with respect to the Fee Letter;
(v) initial Advance meeting the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.requirements of Section 2.03(a);
(xf) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from of the Secretary secretary or an assistant secretary of the Company and each Guarantor certifying, inter alia, (i) true and complete copies of each Borrower attesting to of the articles or certificate of incorporation, as amended and in effect of the Company, the bylaws, as amended and in effect, of the Company and the resolutions of such Borrower's adopted by the Board of Directors of the Company and each of the Guarantors (A) authorizing its the execution, delivery, delivery and performance by the Company and each of its Subsidiaries of this Agreement and the other Loan Documents to which such Borrower it is or will be a party and, in the case of the Company, the Advances to be made hereunder, (B) approving the forms of the Loan Documents to which it is or will be a party and which will be delivered at or prior to the date of the initial Advance hereunder and (C) authorizing specific officers of such Borrower the Company and each of its Subsidiaries to execute and deliver the same;
Loan Documents to which it is or will be a party and any related documents, including, any agreement contemplated by this Agreement, and (eii) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer incumbency and specimen signatures of the jurisdiction officers of organization the Company and each of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictionits Subsidiaries executing any documents on its behalf;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurancethe President, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate Chief Financial Officer or Treasurer of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower Company certifying that there has been no Material Adverse Change change in the businesses or financial condition of the Company which could reasonably be expected to have a Material Adverse Effect since December 31, 1997;
(h) opinions addressed to the Agent and the Banks from (i) Bracxxxxx & Xattxxxxx, X.L.P., counsel to the Company and the Guarantors, substantially in the form set forth as Exhibit 4.01(h)(i), and (ii) from Randxxxx X. Xxxxxx, Xxneral Counsel to the Company, substantially in the form of Exhibit 4.01(h)(ii);
(i) the payment to the Agent and the Banks of all reasonable fees and expenses agreed upon by such Borrower parties to be paid on the Execution Date including, without limitation, any accrued unpaid portions of Commitment Fees due under the Prior Credit Agreement;
(j) certificates of appropriate public officials as to the existence, good standing and qualification to do business as a foreign corporation, as applicable, of the Company and its Subsidiaries in each jurisdiction in which the ownership of its properties or the Collateral since July 31, 1998conduct of its business requires such qualifications and where the failure to so qualify would have a Material Adverse Effect;
(k) certificates of insurance as contemplated by Section 6.03(a); and
(rl) UCC searches and other title information reasonably requested by the Agent on the Company and each of its Subsidiaries. The acceptance of the benefits of the initial Credit Event hereunder shall constitute a representation and warranty by the Company to the Agent and each of the Banks that, to the best of its knowledge, all other documents and legal matters of the conditions specified in connection with the transactions contemplated by this Agreement Section above shall have been delivered, executed, satisfied or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselwaived as of that time.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Bank to make the initial its Initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Dateprecedent:
(a) the Closing Date The Bank shall occur have received, on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary day of the Commonwealth of Massachusetts and the City Clerk of QuincyAdvance, Massachusetts;
(c) Agent shall have received each of the following documentsin form, duly executed, substance and each such document shall be in full force and effectdate satisfactory to the Bank:
(i) this Agreement, executed by the Disbursement LetterBorrowers;
(ii) the Pay-Off LetterNotes, executed by the Borrowers, dated as of the date of this Agreement;
(iii) an "Omnibus Certificate" of the Suretyship Secretary and the President of each of the Borrowers substantially in the form of Exhibit G hereto, which shall contain the names and signatures of the officers of the Borrowers entitled to execute the Loan Documents and to request Advances and which shall certify the truthfulness, correctness and completeness of the following attachments thereto: (1) a copy of the articles of incorporation of each of the Borrowers and all amendments thereto, (2) a copy of the bylaws of each of the Borrowers, and (3) a copy of the resolutions duly adopted by the Board of Directors of each of the Borrowers authorizing the Borrowers to enter into this Agreement, to execute all documents related hereto and to carry out the transactions contemplated herein;
(iv) the Fee LetterCollateral Documents, executed by the Borrowers;
(v) a certificate of the Agents' Side Letterdue incorporation, valid existence and good standing of each of the Borrowers in their respective states of incorporation, issued by the appropriate authorities in such jurisdiction;
(vi) a certificate evidencing each of the Intercompany Subordination AgreementBorrowers' good standing and due qualification as a foreign corporation to do business in each jurisdiction in which such qualification is necessary, including in the case of BFC, but not limited to, New Mexico, Texas and Utah, issued by appropriate authorities in such jurisdictions;
(vii) the Stock Pledge AgreementOpinion of Borrowers' Counsel in the form of Exhibit E hereto;
(viii) Termination statements relative evidence of written approval by the United States Bankruptcy Court having jurisdiction over the bankruptcy proceedings of Bonneville Pacific Corporation that Borrowers are authorized to all financing statements filed by Sprint Communicationsenter into this Agreement and otherwise in form reasonably satisfactory to the Bank;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed the Chase Transfer Documents, duly executed by WorldCom Network Services, Inc. dba WilTel, Inc.)Chase;
(x) evidence satisfactory to the Hale Xxxordination Agreement;Bank of the Borrowers' title to the Mortgaged Properties subject to the Collateral Documents and to the other Collateral, which title shall be free and clear of liens, encumbrances and defects except those in favor of Chase in connection with the Chase Loan which have been transferred to the Bank and those acceptable to the Bank in its sole discretion as listed in Schedule 7.1(n); and
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with instruments that the transactions contemplated by this Agreement Bank shall have reasonably requested, which the Parties anticipate may include (A) an opinion of legal counsel for Borrowers that the Chase Transfer Documents when properly executed will vest in the Bank those rights currently owned by Chase in the Chase Documents and the Mortgaged Property; (B) corporate documents and records; and (C) certificates of officers and representatives of Borrowers as to the accuracy and validity of or compliance with all representations, warranties and covenants made by Borrowers in this Agreement.
(b) The Bank shall have conducted an examination of and have been deliveredsatisfied (in its sole discretion, executedreasonably exercised) with BFMC's and BFM Corp.'s gas marketing, or recorded accounting and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselbilling systems.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) shall not be obligated to make the initial Initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of until the following conditions have been satisfied (as determined by Lender in its discretion) or waived in writing by Lender, on or before and as of the Closing Date and the Initial Advance Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have Lender has received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
dated the Closing Date or as of the Closing Date unless otherwise specified: (i) each Loan Document that will be entered into in connection with the Disbursement Letter;
Closing Date duly executed and delivered by each of the parties thereto, (ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (an official good standing certificate or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received its documentary equivalent dated a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status recent date with respect to each Borrower, dated Parent Guarantor, Asset Manager and Pledgor/Guarantor, (iii) certificates of the secretary or an assistant secretary of each Borrower, Parent Guarantor, Asset Manager and Pledgor/Guarantor, together with copies of their respective Governing Documents, applicable corporate resolutions and incumbencies and signatures of officers who are executing the applicable Loan Documents, evidencing the respective authority of each Borrower, Parent Guarantor, Asset Manager and Pledgor/Guarantor with respect to the execution, delivery and performance thereof, (iv) a Closing Certificate, (v) [reserved], (vi) [reserved], (vii) such opinions from nationally recognized counsel to each Borrower, Parent Guarantor and Pledgor/Guarantor as Lender may require, including with respect to corporate matters, enforceability of each of the Loan Documents, non-contravention, no consents or approvals required other than those that have been obtained, perfected security interests in the Collateral, the Accounts and any other collateral pledged pursuant to the Loan Documents, and Investment Company Act matters, (viii) to the extent applicable, duly executed amendments to all Governing Documents for the Borrowers, reasonably acceptable to Lender, to provide for separateness in conformity with Section 9.01, (ix) evidence that an Operating Account has been established for each Borrower as of a date within a reasonable proximity to the Closing Date; (x) an executed Power of Attorney in the form of Exhibit L for each Borrower, (xi) an executed Tenant Instruction Notice, (xii) an executed Subcontractor Instruction Notice and (xiii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as it may reasonably require;
(b) Lender has received all Eligible Property Information with respect to the Initial Borrowing Base Properties;
(c) (i) UCC financing statements have been filed against each Borrower and Pledgor/Guarantor in all filing offices required by Lender, (ii) Lender has received such certificate searches of UCC filings, tax liens, judgments, pending litigation, bankruptcy and other matters relating to be issued each Borrower, Parent Guarantor and Pledgor/Guarantor as Lender may require, and (iii) the results of such searches are reasonably satisfactory to Lender;
(d) Lender has received payment from Borrowers of all fees and expenses then payable by Borrowers under the appropriate officer Fee Letter and the other Loan Documents, as contemplated by Section 13.02;
(e) Lender has received original limited liability company certificates evidencing 100% of the jurisdiction Capital Stock of organization each Borrower together with appropriate transfer and assignment documents in blank duly executed or endorsed by Pledgor;
(f) copies of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictioneach applicable Management Agreement;
(g) Agent shall have received certificates of status duly executed Asset Management Letter Agreements which comply with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions provisions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;Section 17.01(e); and
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory Lender has completed to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being its satisfaction such officer's good faith best estimate due diligence of the financial performance of Borrower during the period covered thereby;
Relevant Parties (jincluding, Lender’s “Know Your Customer” and Anti-Terrorism Laws diligence) Agent shall have received a Collateral Access Agreement relative to Borrower's location and modeling as it may require in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole its discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Appears in 1 contract
Samples: Master Loan and Security Agreement (American Homes 4 Rent)
Conditions Precedent to the Initial Advance. The obligation Initial Advance shall not exceed $97,500,000 less the Holdbacks under Section 5.1 of this Agreement (collectively, the "HOLDBACKS"). Lender Group (or any member thereof) shall not be obligated to make the initial Initial Advance is subject unless and until Borrower shall have delivered to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each lender of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15following, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to AgentLender:
(a) The fully-executed Note and the other Loan Papers;
(b) The Guaranty;
(c) The Letter of Credit;
(d) The Commitment Fee of $245,000, to the extent the Commitment Fee is required to be paid under Section 8.1.
(e) ALTA or equivalent loan or mortgagee policy(ies) of title insurance, or written undertaking(s) by a title insurance company to provide said policy(ies) within seven (7) days, in form and substance and in amount acceptable to Lender and insuring that the liens and security interests created by the Deed of Trust constitute valid first priority and second priority liens, as applicable, encumbering the Projects, subject to no exceptions other than those approved in writing by Lender;
(f) The limited partnership agreement of Borrower, and all amendments thereto, the articles of organization and regulations of ARC, LLC, and all amendments thereto, the certificate of limited partnership for each of Borrower and ARC, LP, and the articles of incorporation, bylaws, certificates of good standing (Tennessee, Texas, Arizona, Ohio and Colorado), certificates of authority to do business (Texas, Arizona, Ohio and Colorado), certificate of incumbency and authorizing resolution for ARC Fort Austin;
(g) Legal opinion(s) issued by Borrower's counsel, in form and content acceptable to Lender and Lender's counsel, as to the valid existence of Borrower and each of Guarantors and the due authorization, execution, delivery, enforceability and validity of this Agreement and the other Loan Papers executed and delivered by Borrower and Guarantors; that the Loan is not usurious; that Borrower's counsel has no knowledge and has received no notice that any of the Projects is in violation of any zoning, building, health, fire, traffic, environmental, wetlands, coastal or other rules, regulations, ordinances, statutes and requirements applicable to the Projects; and that the Loan Papers do not create or constitute a partnership, joint venture or other trust or fiduciary relationship between Borrower and Lender; and as to such other matters as Lender or Lender's counsel reasonably may specify;
(h) Current UCC searches for Borrower and the immediately preceding owner of each of the Projects, in form and content acceptable to Lender;
(i) Evidence of insurance as described in the Deed of Trust, including, without limitation, all- risk casualty insurance, use and occupancy insurance covering rental income loss, and comprehensive general liability insurance, in form and substance and from issuing companies acceptable to Lender, naming Lender as an additional or named insured, as its interests may appear, and their respective counsel.conforming in all respects to the requirements of the Commitment;
(j) Evidence of professional liability or medical malpractice insurance in form and amount and from an insurer satisfactory in all respects to Lender;
(k) Current "as-built" surveys for each Project prepared by a surveyor or engineer acceptable to Lender and certified to Lender's benefit in form and substance acceptable to Lender;
(l) Engineering reports or architect's certificates, in form and content acceptable to Lender with respect to the Projects, covering, among other matters, inspection of heating and cooling systems, roof and structural details and showing no failure of compliance with building plans and specifications (which must be approved by Lender) or with any applicable local, state or federal law, a schedule of which engineering reports or architect's certificates are listed on Exhibit E attached hereto and made a part hereof;
(m) Environmental engineering reports with respect to the Projects, in form and content acceptable to Lender, conducted by an engineer and in a manner both of which are satisfactory to Lender, based upon an investigation relating to toxic or hazardous wastes, waste products, or substances on the Projects;
(n) Evidence acceptable to Lender that all requisite certificates of occupancy, building permits, and other licenses, certificates, approvals or consents required of any regulatory authority having jurisdiction over the Projects have been issued without variance or condition and that there is no litigation, action, citation, injunctive proceedings, or like matter pending or threatened with respect to the validity of such matters;
(o) A current rent roll of each of the Projects, certified by Borrower or the current owner of each of the Projects, and copies of all Residency Agreements, and a copy of each standard lease form, admission agreement, or occupancy or other residency agreement form to be used by Borrower in leasing space in the Projects, or conducting a retirement home business in the Projects, in form satisfactory to and approved by Lender;
(p) Copies of all management agreements for the Projects, approved by Lender and certified by Borrower;
(q) Evidence satisfactory to Lender (based on Lender's audit, at Borrower's expense, of all income and expenses of the Projects) that the Net Revenues Available for Debt Service generated by the Projects equals or exceeds $11,270,000 on an annualized basis from Residency Agreements for not more than ninety-five percent (95%) of the units of the Projects after application of a management fee equal to three percent (3%) of Revenues and a Capital Expenditures Reserve of one percent (1%) of Revenues per annum;
(r) Evidence satisfactory to Lender that Borrower is and has at all relevant times been in all respects in compliance with all requirements of the Social Security Act of 1965, the regulations promulgated thereunder, and, as applicable, all conditions of participation in the Medicare program thereunder, including, without limitation, those imposed by the States of Texas, Arizona, Ohio and Colorado, the Texas Department of Health, the Texas Department of Human Services, the Arizona Department of Health Services, the Ohio Department of Health, the Ohio Department on Aging, Colorado Department of Public Health and Environment, the Colorado Department of Healthcare Policy and Financing and the United States Department of Health and Human Services;
(s) Certified copies of (i) Medicare provider agreements, as applicable, issued under Title XVIII and Title XIX of the Social Security Act of 1965, with current provider numbers, (ii) as applicable, Nursing Home Licenses (or "long-term-care licenses") issued by the Texas Department of Health, or the Texas Department of Human Services for Broadway and Summit, and the Arizona Department of Health Services for Santa Catalina, (iii) a Personal Care Facilities License issued by the Texas Department of Health, or the Texas Department of Human Services, for Broadway, Summit and Hampton, the Arizona Department of Health Services for Santa Catalina, the Ohio Department of Health or the Ohio Department on Aging for Westlake Village, and the Colorado Department of Public Health and Environment, the Colorado Department of Healthcare Policy and Financing for Parkplace, and (iv) all licenses, permits and approvals required or convenient for the operation of the Projects as retirement communities under applicable laws and regulations, such certifications to state that such agreements, licenses, permits and approvals are in full force and effect;
(t) Evidence satisfactory to Lender that the Projects and the operation thereof comply with all covenants and restrictions of record and applicable laws, ordinances, rules and regulations, including, without limitation, the Americans with Disabilities Act and regulations thereunder;
(u) Evidence satisfactory to Lender that there shall have been no change in the financial condition of Borrower or in the Net Revenues Available for Debt Service which materially and adversely affects Borrower's ability to perform its obligations under the Note or under any of the other Loan Papers;
(v) Evidence satisfactory to Lender that no condemnation or adverse zoning or usage change proceedings shall have been commenced or threatened against any of the
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligations of each Lender under this Agreement and the obligation of the each Lender Group (or any member thereof) to make the initial Initial Advance is shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions precedent that on or before the Closing Date:
(a) All terms, conditions and documentation in connection with this Credit Agreement shall be acceptable to the Closing Date shall occur on or before October 15, 1998;Lenders.
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary The making of the Commonwealth of Massachusetts and Revolving Commitment and/or the City Clerk of Quincy, Massachusetts;Revolver/Term Commitment shall not contravene any Law applicable to the Administrative Agent or any Lender.
(c) Agent Each Lender shall have received each a Certificate from an Authorized Officer stating that no Material Adverse Change, as determined by the Lenders, shall have occurred and be continuing (A) in the financial markets, or (B) in the Systems, business, assets, prospects, or financial condition of the following documentsbusinesses of the Borrower (as operated by the Restricted Subsidiaries) since December 31, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 391996.
(d) Agent All proceedings of the Borrower, the Restricted Subsidiaries and each other GCI Entity taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall have received a certificate from the Secretary of each Borrower attesting be reasonably satisfactory in form and substance to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent Lenders. Each Lender shall have received copies of each Borrower's Governing Documents, as amended, modified, all documents or supplemented to the Closing Date, certified by the Secretary of other evidence that it may reasonably request in connection with such Borrower;transactions.
(fe) Agent Each Lender shall have received a certificate an executed copy of status with respect to each Borrowerthis Agreement and its respective Notes, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent duly completed and correct. The Lenders shall have received certificates copies of status with respect to each the Fee Letters signed by the Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer applicable. Each of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel following shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that delivered to the best Administrative Agent on behalf of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to the Administrative Agent, Special Counsel and each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend Lender to the Accounts generated extent required by the Administrative Agent: Each other Loan Paper requested by the Administrative Agent, including, without limitation, all guarantees, pledge agreements, security agreements, mortgages, deeds of trust, collateral assignments and other agreements granting any interest in any collateral.
(f) The Borrower shall have delivered to each Lender a Certificate, dated the Closing Date, executed by an Authorized Officer on behalf of the Borrower, GCII and each Restricted Subsidiary, certifying that (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in Article V hereof are true and correct, (iii) each of the GCI Entities has complied with all agreements and conditions to be complied with by it under the Loan Papers by such Equipment;date, (iv) that the attached resolutions for each GCI Entity are the true, accurate and complete resolutions authorizing the corporate restructuring, the incurrence and performance of the Facilities and the Loan Papers, (v) that the attached copies of certified articles of incorporation, or other articles of organization, certificates of good standing, certificates of existence and incumbency certificates for each GCI Entity are (A) not more than 30 days old and certified by the appropriate secretary of state of other governmental organization and (B) represent the true and accurate certificate for each such entity and (vi) the attached copies of by-laws or other organizational documents represent the true and accurate by-laws or other organizational documents for each GCI Entity in effect on the Closing Date.
(pg) Agent Each Lender shall have received payment opinions of all accrued (i) Xxxxxxx & Xxxxxx, L.L.C. corporate counsel to the Borrower, the Restricted Subsidiaries and unpaid Lender Group Expenses;
each other GCI Entity, dated the Closing Date, acceptable to the Lenders and otherwise in form and substance satisfactory to the Lenders and Special Counsel, with respect to this loan transaction and otherwise, including, without limitation, opinions (qA) Agent shall have received a certificate from an officer to the valid and binding nature of the Loan Papers, (B) to the enforceability of the Loan Papers, (C) to the power, authorization and corporate matters of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters Person taken in connection with the transactions contemplated by the Loan Papers, (D) that the execution, delivery and performance by the GCI Entities, as applicable, of the Agreement and the Loan Papers does not violate any of the terms of the Borrower's, the Restricted Subsidiaries' or any other GCI Entities' agreements, (E) regarding and the issuance and related opinions to the Senior Notes, (F) the corporate restructuring in order to effectuate this Agreement and the issuance of the Senior Notes, (G) regarding the equity issuance required by Section 4.01(j) hereof, and (H) to such other matters as are reasonably requested by Special Counsel, and (ii) such local counsel opinions relating to the Collateral and such other matters as are requested by the Administrative Agent and Special Counsel. Copies of all opinions delivered in connection with the equity issuance required by Section 4.01(j) hereof, the Senior Notes shall be delivered to the Administrative Agent together with a reliance letter thereon.
(h) Each Lender shall have been deliveredreceived an opinion of inhouse counsel to the Borrower and to each other GCI Entity, executeddated as of the Closing Date, or recorded acceptable to the Lenders and shall be otherwise in form and substance satisfactory to Agentthe Lenders and Special Counsel, with respect to this transaction and final approval shall have been received from the FCC regarding any transfer of any FCC license.
(i) GCII shall have (i) issued the Senior Notes in an amount not less than $150,000,000, on terms and conditions, and subject to documentation, satisfactory to the Administrative Agent and each Lender, and (ii) downstreamed the net proceeds of the debt issuance described in (i) above to the Borrower as equity.
(j) [GCI shall have raised not less than $____ in equity on terms and conditions acceptable to the Administrative Agent and the Lenders, and the Borrower shall have (i) received not less than $_____ as an equity contribution from such proceeds, on terms and conditions acceptable to the Administrative Agent and each Lender, (ii) downstreamed the net proceeds of the equity issuance described in (i) above to the Borrower as equity.]*** ****IF EQUITY WILL NOT BE RAISED PRIOR TO EXECUTION OF THIS AGREEMENT, WE WILL DELETE THIS CONDITION PRECEDENT AND CHANGE THE COVENANTS IN SECTION 7.01 TO REFLECT THE ALTERNATE PROVISIONS IN THE COMMITMENT LETTER AND TERM SHEET****
(k) All Affiliate transactions among any of the Borrower, the Parents and their respective counselAffiliates shall be pursuant to terms and conditions acceptable to the Administrative Agent and the Lenders.
(l) No management agreement with any Person shall be in existence at the Parents, the Borrower or any Restricted Subsidiaries, except the Prime Management Agreement.
(m) All proceedings of the Parents, the Borrower and the Subsidiaries of the Parents and the Borrower taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall be satisfactory in form and substance to each Lender. The Administrative Agent and each Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
(n) All Obligations outstanding under the existing credit facility shall have paid in full and released.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The Lender's obligation of the Lender Group (or any member thereof) to make the initial Advance is hereunder shall be subject to the fulfillment, to condition precedent that the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent Lender shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrowerfollowing, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent the Lender:
(a) This Agreement, properly executed by the Borrower.
(b) The Note, properly executed by the Borrower.
(c) A true and correct copy of any and all leases pursuant to which the Borrower leases any Premises in Lafayette, Louisiana, plus a true and correct copy of all the leases pursuant to which Parent will replace its Premises located at 600 00xx Xxxxxx, Xxxxxx, Xxxxxxxx, xogether with a landlord's disclaimer and consent with respect to each such lease.
(d) The Collateral Account Agreement, properly executed by the Borrower and Bank One.
(e) Control agreements, properly executed by the Borrower and each Lender in their sole discretion;bank at which the Borrower maintains deposit accounts including the Collateral Account.
(lf) Agent and Agent's counsel shall Current searches of appropriate filing offices showing that (i) no Liens have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such remain in effect against the Borrower or its propertiesany Corporate Guarantor except Permitted Liens or Liens held by Persons who have agreed in writing that upon receipt of proceeds of the initial Advances, assetsthey will satisfy, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 release or terminate such taxes that are the subject of Liens in a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that manner satisfactory to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel(ii) the Lender has duly filed all financing statements necessary to perfect the Security Interest, to the extent the Security Interest is capable of being perfected by filing.
(g) A certificate of the Borrower's (and each Corporate Guarantor's) Secretary or Assistant Secretary certifying that attached to such certificate are (i) the resolutions of the Borrower's (and each Corporate Guarantor's) Directors and, if required, Owners, authorizing the execution, delivery and performance of the Loan Documents, (ii) true, correct and complete copies of the Borrower's (and each Corporate Guarantor's) Constituent Documents, and (iii) examples of the signatures of the Borrower's (and each Corporate Guarantor's) Officers or agents authorized to execute and deliver the Loan Documents and other instruments, agreements and certificates, including Advance requests, on the Borrower's (and each Corporate Guarantor's) behalf.
(h) A current certificate issued by the Secretary of State of Delaware, certifying that the Borrower is in compliance with all applicable organizational requirements of the State of Delaware, together with a current certificate issued by the Secretary of State of the jurisdiction of incorporation of each Corporate Guarantor, certifying that such Corporate Guarantor is in compliance with all applicable organizational requirements of such State.
(i) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(j) A support agreement in favor of the Lender, properly executed by each of W. Phixxxx Xxxxxx xxd A.
Appears in 1 contract
Samples: Credit and Security Agreement (Metretek Technologies Inc)
Conditions Precedent to the Initial Advance. The obligation of the each Lender Group (or any member thereof) to make the its initial Advance to the Borrower is subject to the fulfillmentcondition that the Agent shall have received the following, each in form and substance reasonably satisfactory to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) this Agreement executed by the Closing Date shall occur on or before October 15, 1998Borrower and the other Loan Parties;
(b) Agent shall have received all financing statements and fixture filings required one Revolving Credit Note for each Revolving Credit Lender, each executed by the Borrower and payable to the order of said Lender Group, duly executed by Borrower, and Agent shall have searches reflecting in the filing amount of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsRevolving Credit Commitment;
(c) Agent shall have received each the Swing Line Note executed by the Borrower and payable to the order of the following documents, duly executed, and each such document shall be Swing Line Lender in full force and effect:
(i) the Disbursement Letteramount of the Swing Line Commitment;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from one Term Note for each Term Loan Lender, each executed by the Secretary of each Borrower attesting and payable to the resolutions order of such Borrower's Board said Lender in the amount of Directors authorizing its execution, delivery, and performance of this Agreement and the other Term Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the sameCommitment;
(e) Agent shall have received copies the Security Documents executed by each of each Borrower's Governing Documentsthe Loan Parties, as amendedthe case may be, modifiedto be a party thereto, or supplemented including all certificates evidencing shares of stock of the General Partner and the Limited Partner and all partnership interests of the Partnership and Subsidiaries pledged to the Closing DateAgent for the benefit of the Lenders under the terms of any Security Document, certified together with related stock powers duly executed by the Secretary of such Borrowerapplicable pledgor;
(f) Agent shall have received a certificate of status with respect to each Borrowerthe Intercreditor Agreement, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued duly executed by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictionparties thereto;
(g) Agent shall have received certificates a Notice of status Advance with respect to each Borrower, each dated as the initial Advance meeting the requirements of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsSection 2.04;
(h) Agent a certificate (i) of the secretary or an assistant secretary or other Responsible Officer of each of the Loan Parties certifying (A) true and complete copies of each of the articles or certificate of incorporation, organization or partnership, as applicable, as amended and in effect, of such Person, the bylaws, regulations, operating agreement, or agreement of limited partnership, as applicable, as amended and in effect, of such Person and the resolutions adopted by the Board of Directors, general partner, requisite members or mangers, as applicable, of such Person, (1) authorizing the execution, delivery and performance by such Person of the Loan Documents to which it is or will be a party and, as to the Borrower, the Advances to be made hereunder, and (2) authorizing Responsible Officers of such Person to negotiate, execute and deliver the Loan Documents to which it is or will be a party and any related documents, including, any agreement contemplated by this Agreement, and (B) the incumbency and specimen signatures of the Responsible Officers of such Person executing any documents on its behalf and (ii) of a Responsible Officer of the Borrower certifying, (A) that there has been no change in the businesses or financial condition of such Person which would reasonably be expected to have a Material Adverse Effect since December 31, 2004, and (B) that no Default or Event of Default shall have received a certificate of insurance, together with occurred and be continuing or would result from the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counselinitial Advance;
(i) favorable, signed opinions addressed to the Agent shall have received and the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of Lenders from Vxxxxx & Exxxxx L.L.P. and Axxxx & Overy, counsel to the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel Loan Parties in form and substance satisfactory to the Agent and its counsel;
(j) the Agent shall have received the payment for the Agent and the Lenders, as applicable, of all Fees and expenses agreed upon by such parties and the Borrower to be payable on or prior to the Execution Date or the Effective Date, as the case may be;
(k) certificates of appropriate public officials as to the existence, good standing and, if material, qualification to do business as a foreign corporation, as applicable, of the Loan Parties and their respective Subsidiaries, in each Lender jurisdiction in which the ownership of their sole discretionproperties or the conduct of their business requires such qualifications;
(l) Agent and Agent's counsel shall have been provided with a copy copies of each Carrier Agreement the Financials described in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier AgreementSection 6.07 hereof;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its propertiesSolvency Certificate, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, executed by the chief financial officer of the Borrower certifying as to the solvency of each LenderLoan Party before and after giving effect to the Transaction, the making of the initial Advance and the application of proceeds thereof;
(n) a certificate in form and substance satisfactory to Agent executed by the chief financial officer of the Borrower stating that, (i) for the twelve-month period ending March 31, 2005, pro forma Acquisition EBITDA of the Borrower and its Subsidiaries (taking into account the UK Acquisition) was not less than $50,000,000, and their respective counsel(ii) the pro forma financial statements and forecasts delivered pursuant to clause (p) below were prepared in good faith on the basis of the assumptions stated therein, which assumptions are fair in light of then existing conditions (it being understood that projections are necessarily based upon opinions, estimates and projections and that the Borrower and its Subsidiaries and representatives do not warrant that such opinions, estimates and projections will ultimately prove to have been accurate);
(o) (i) unaudited financial statements of the Company for any interim quarterly periods which have ended since the date of the most recent audited financial statements and at least 30 days prior to the Effective Date, which (A) shall be reasonably satisfactory in form and substance to the Arrangers, and (B) shall not be materially inconsistent with the information and projections provided to the Arrangers and the Lenders prior to the Effective Date; and (ii) forecasts prepared by management of the Borrower and its Subsidiaries, each in form reasonably satisfactory to the Arrangers, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the Effective Date and on an annual basis for each year thereafter during the term of the Agreement;
(p) (i) all filings, recordations and searches necessary or desirable in connection with the Liens and security interests in the Collateral described in the Security Documents shall have been duly made (or otherwise provided for in a manner reasonably satisfactory to the Agent); all filing and recording fees and taxes shall have been duly paid (or otherwise provided for in a manner reasonably satisfactory to the Agent); and (ii) the Agent shall have received satisfactory evidence that the Agent has (or, upon the completion of any filings or recordings of any documents, financing statements or instruments delivered to the Agent will have) a valid and perfected first priority Lien and security interest in the Collateral described in the Security Documents;
(q) Certificates of Insurance evidencing the existence of all insurance required to be maintained pursuant to Section 6.17, including endorsements naming the Agent on behalf of the Lenders as an additional insured or loss payee, as the case may be;
(r) evidence satisfactory to the Agent that the Borrower has received all necessary governmental, shareholder and material third party consents and/or approvals necessary to effect the UK Acquisition, expiration of all applicable waiting periods without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on any of the Borrower and its Subsidiaries, or the Transaction, or that could seek to restrain or threaten any of the foregoing, and the absence of any applicable law or regulation which in the reasonable judgment of the Arrangers could have such material adverse conditions or effect;
(s) evidence that the UK Acquisition shall have been consummated simultaneously with the initial Credit Event hereunder in accordance with the terms of the UK Acquisition Agreement and in compliance with applicable law and regulatory approvals;
(t) evidence of receipt by the Borrower of not less than $75,000,000 gross cash proceeds from the advance of the loans under the Second Lien Credit Agreement;
(u) an executed deed of release with respect to the Company’s term loan Indebtedness and other obligations under its existing credit facility with The Royal Bank of Scotland (other than obligations relating to the overdraft facility permitted under Section 8.03(l)), prior to or simultaneously with the occurrence of the Effective Date, in form and substance satisfactory to the Agent and confirmation that all Liens or other security interests granted by the Company in connection with such credit facility have been released;
(v) all documentation and other information requested by the Agent or any Arranger and required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Act; and
(w) such other consents, approvals, opinions or documents as the Agent may reasonably request. The acceptance of the benefits of the initial Credit Event shall constitute a representation and warranty by the Borrower to the Agent and each of the Lenders that all of the conditions specified in this Section 5.01, shall have been satisfied or waived as of that time.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation obligations of the Lender Group (or any member thereof) to make the initial Advance is under this Agreement are subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of conditional upon the following conditions on or before precedent being satisfied as of the Closing Datedate of the first Drawdown:
(a) the Closing Date this Agreement and all other Loan Documents shall occur on or before October 15, 1998have been executed and delivered by all parties hereto;
(b) Agent duly executed copies of the Security Documents, including the Intercreditor Agreement in form and on terms satisfactory to the Lender, shall have received been delivered to the Lender (along with certificates, if any, representing all shares or other securities pledged, together with related stock powers duly executed in blank or duly executed pledge endorsements, as applicable except to the extent that such certificates and stock powers have been delivered to and are held by ATB) and such financing statements and fixture filings required by or other registrations of the Security, or notice thereof, shall have been filed and/or registered, entered or recorded in all offices of public record necessary or desirable in the opinion of the Lender Groupto preserve or protect the charges and security interests created thereby, duly executed by Borrowerin each case, and Agent shall have searches reflecting that are required to be delivered on the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsClosing Date;
(c) Agent the Lender shall have received a Drawdown Notice;
(d) the Lender shall have received certified copies of the Organizational Documents of each Obligor, the resolutions authorizing the execution, delivery and performance of each Obligor’s respective obligations under the Loan Documents to which they are a party and the transactions contemplated herein, and the incumbency of the officers and directors of the Obligors;
(e) the Lender shall have received a solvency certificate, substantially in the form set forth in Schedule E from the chief financial officer of the Borrower;
(f) the Lender shall have received a certified true copy of all Material Licences and licenses from any other applicable authority (or application made), for each of the following documentsBorrower or Guarantor’s facilities together with all amendments thereto and all material correspondence received from Governmental Authorities including any communications on non-compliance items;
(g) the Lender shall have received a certified true copy of all Material Contracts, duly executedcapital leases and agreements establishing credit facilities including the ATB Agreement, the FCC Agreement, the Royalty Agreement, the Share Purchase Promissory Note and all amendments to each of them and related documentation including intercreditor agreements;
(h) the Lender shall have received a currently dated legal opinion from the Borrower’s Counsel along with the opinions of legal counsel reasonably satisfactory to Lender’s Counsel with respect to all Obligors with respect to, among other things, corporate matters, searches, security filings and enforceability of all Loan Documents, all in form and substance satisfactory to the Lender and Lender’s Counsel, and confirming that the Obligors are qualified to carry on their businesses in the jurisdictions in which their business is conducted and their activities will not contravene any Applicable Laws therein;
(i) the Lender shall have received a legal opinion or other evidence satisfactory to the Lender that (i) the principal amount owing on the Share Purchase Promissory Note is not payable until after the Senior Lenders (as defined thereunder) have been repaid (including no repayment of principal thereunder prior to repayment in full of the Credit Facility) and (ii) the Lender will be a Senior Lender as defined in the Share Purchase Promissory Note;
(j) the Debt under the Auxly Agreement shall have been repaid in full or the Lender shall have been irrevocably directed to deduct such amounts from the Advance under the Credit Facility, and the credit facilities under the Auxly Agreement shall be cancelled and all security released and discharged;
(k) the Lender shall have received certificates of status, good standing or the local equivalent (if any), as applicable, in respect of each Obligor;
(l) the Lender shall have received certified copies of all policies evidencing insurance (or a binder, commitment or certificates signed by the insurer or a broker authorized to bind the insurer), in form and substance reasonably satisfactory to the Lender, which include the Lender as loss payee and mortgagee under policy/ies covering physical loss or damage to the Property of the Obligors (which policy/ies shall be subject to a standard mortgage clause or lender loss payable clause as approved by the Insurance Bureau of Canada) and with the Lender as additional insured under liability insurance policies covering such document Property (for clarity, excluding professional liability insurance, automobile liability insurance and workers compensation insurance) and with the property damage policies and liability policies (for clarity, excluding professional liability insurance, automobile liability insurance and workers compensation insurance) including a waiver of subrogation of the insurers’ rights of subrogation in favour of the Lender;
(m) all fees payable to the Lender on the Closing Date and reasonable and documented out-of-pocket expenses (including legal fees) required to be paid on the Closing Date pursuant to this Agreement, in each case to the extent invoiced at least two Business Days prior to the Closing Date, shall have been paid, or the Lender shall have been irrevocably directed to deduct such amounts from the Advance under the Credit Facility;
(n) the Lender shall have received, at least three (3) Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), that has been reasonably requested by the Lender at least five (5) Business Days prior to the Closing Date;
(o) the Lender shall have received a certified copy of the UK Purchase Agreement, any amendments or waivers thereto, and all material documentation relating to the UK Purchase Agreement together with evidence of the consent of ATB to the acquisition thereunder and any amendments or waivers to the UK Purchase Agreement shall be satisfactory to the Lender acting reasonably;
(p) the representations and warranties in Section 8.01 shall be true and correct in all material respects and the Lender shall have received a certificate of an officer of the Borrower to that effect;
(q) no Default or Event of Default shall have occurred and be continuing; and
(r) the Lender shall have received a copy of the most recent compliance certificate and calculation of financial covenants delivered by the Borrower to ATB under the ATB Agreement. provided that all documents delivered pursuant to this Section 3.01 shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; effect and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each the Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselacting reasonably.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, the Collateral Agent and their respective its counsel, of each of the following conditions on or before the Closing Date, and upon such satisfaction, this Agreement shall be deemed effective:
(a) the Closing Date shall occur on or before October 15July 1, 19982002;
(b) Agent The Reorganization Plan shall have received all financing statements be in form and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettssubstance satisfactory to Agents;
(c) the Confirmation Order shall have been entered by the Bankruptcy court, shall be in full force and effect, and shall be final and non-appealable, and shall not be the subject of any appeal;
(d) Collateral Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement LetterPledge Agreement, duly executed by Borrower, substantially in the form attached as Exhibit 3.1(d)(i) to this Agreement, together with stock certificates and stock powers required by the terms of the Pledge Agreement;
(ii) the Pay-Off LetterIntercreditor Agreement, duly executed by the Senior Notes Trustee, the Junior Notes Trustee, and Borrower;
(iii) the Suretyship Mortgages substantially in the form attached as Exhibit 3.1(d)(iii) to this Agreement;; and
(iv) the Fee Letter;.
(ve) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Collateral Agent shall have received a certificate from the Secretary of each Borrower (i) attesting to the resolutions of such Borrower's its Board of Directors authorizing its Borrower's execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the samesame and (ii) certifying the names and true signatures of the officers of Borrower authorized to sign each Loan Document;
(ef) Collateral Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(fg) Collateral Agent shall have received a certificate of status with respect to each Borrower, Borrower dated as within 10 days of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(gh) Collateral Agent shall have received certificates of status with respect to each Borrower, each dated as within 15 days of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its Borrower's failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(hi) Collateral Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, Collateral Agent and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan its counsel and certified by an officer of Borrower as being such officer's good faith best estimate copies of the financial performance policies of Borrower during insurance, together with the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincyendorsements thereto, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in as are required by Section 6.10, the form and substance of which shall be satisfactory to Collateral Agent and each Lender in their sole discretionits counsel;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligations of each Lender under this Agreement and the obligation of the each Lender Group (or any member thereof) to make the initial Initial Advance is shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions precedent that on or before the Closing Date:
(a) the Closing Date All terms, conditions and documentation in connection with this amendment and restatement shall occur on or before October 15, 1998;be acceptable to Lenders.
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary The making of the Commonwealth of Massachusetts Commitment and the City Clerk of Quincy, Massachusetts;Term Loan shall not contravene any Law applicable to Administrative Lender or any Lender.
(c) Agent Each Lender shall have received each a Certificate from an Authorized Officer stating that no material adverse change in the business, assets, prospects, or financial condition of Company and its Subsidiaries since the following documentsSeptember 30, duly executed, 1995 financial statements provided to Lenders. Administrative Lender shall have received financial information regarding Company and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed Subsidiary of Company requested by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39it.
(d) Agent Each Lender shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance an executed copy of this Agreement and the other Loan Documents to which such Borrower is a party its respective Notes, duly completed and authorizing specific officers of such Borrower to execute the same;
(e) Agent correct. Lenders shall have received copies of each Borrower's Governing Documentsthe Fee Letters signed by Company, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer applicable. Each of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel following shall have been provided with a copy delivered to Administrative Lender on behalf of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to Administrative Lender, Special Counsel and each Lender. The Guaranty Agreement executed by each Guarantor and a Subordination Agreement executed by each payee of an Intercompany Note.
(e) Company shall have delivered to Administrative Lender a Certificate, acknowledging dated the Closing Date, executed by an Authorized Officer, certifying that, to such Authorized Officer's knowledge, (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in Article IV hereof are true and correct in all material respects, and (iii) Company and each Subsidiary of Company has complied with all agreements and conditions to be complied with by it in all material respects under the Loan Papers by such date.
(f) Company and each Guarantor shall have each delivered to Administrative Lender on behalf of Lenders a Secretary's Certificate, dated the Closing Date, certifying (i) that Chase's liens attached copies of the certificates of organization certified by the Secretary of States of the appropriate states, and bylaws are true and complete, and in full force and effect, without amendment except as shown, (ii) that a copy of the Equipment leased resolutions authorizing execution and delivery of this Agreement and any Loan Papers, as appropriate, are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified, or revoked, and constitute all resolutions adopted with respect to this loan transaction, (iii) that copies of certificates of good standing and certificates of existence for the States of Delaware and Arizona. Administrative Lender and Lenders may conclusively rely on the certificate delivered pursuant to this subsection until they receive notice in writing to the contrary.
(g) Administrative Lender shall have received an opinion or opinions of counsel to Company and its Subsidiaries, dated the Closing Date, acceptable to Lenders and otherwise in form and substance satisfactory to Lenders and Special Counsel, with respect to this loan transaction and otherwise, including, without limitation, opinions (i) to the valid and binding nature of the Loan Papers, (ii) to the power, authorization and corporate matters of each such Person taken in connection with the transactions contemplated by Borrower from Chase the Loan Papers, (iii) that the execution, delivery and performance by Company and the Subsidiaries of Company of the respective Loan Papers does not extend violate any of the terms of Company's or any such Subsidiary's agreements, and (iv) to such other matters as are reasonably requested by Special Counsel.
(h) Simultaneously with the Accounts generated by such Equipmentreceipt of proceeds of the Initial Advance, the Indebtedness under the Nomura Credit Agreement shall be paid in full, the commitments thereunder shall be terminated and the collateral with respect thereto shall be released.
(i) Administrative Lender shall have received, on behalf of Lenders, each of the following, in form and substance satisfactory to Administrative Lender and Special Counsel:
(i) the results of UCC and other Lien searches against the assets of Company and each Subsidiary of Company;
(pii) Agent shall have received payment evidence that all proceedings of all accrued Company and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters its Subsidiaries taken in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be reasonably satisfactory in form and substance to Lenders and Special Counsel; and each Lender shall have received copies of all documents or other evidence which Lenders or Special Counsel may reasonably request in connection with this facility, including without limitation the resolutions of the Board of Directors of Company and each Subsidiary, and the requisite authorizations of all other Persons necessary to authorize the transactions contemplated herein, certified to be true and correct by an Authorized Officer;
(iii) payment of all fees, costs and expenses (including, without limitation, attorneys' fees of Special Counsel and the fees set forth in the Fee Letter due to be paid through the Closing Date); and
(iv) a Compliance Certificate computed after giving effect to the Initial Advance.
(j) All corporate proceedings of Company and its Subsidiaries taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall be satisfactory in form and substance to Agent, each Lender, . Administrative Lender and their respective counseleach Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
Appears in 1 contract
Samples: Credit Agreement (Franchise Finance Corp of America)
Conditions Precedent to the Initial Advance. The obligation of the each Lender Group (or any member thereof) to make its Revolving Credit Loans to the initial Advance Company under this Agreement is subject to the fulfillmentcondition that the Agent shall have received the following, each in form and substance reasonably satisfactory to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) this Agreement executed by the Closing Date shall occur on or before October 15, 1998Company;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, MassachusettsNote Modification Agreement;
(c) Agent shall have received each the Partnership Agreement of the following documents, duly executed, Company executed by the Parent and each such document shall be in full force and effect:
(i) the Disbursement LetterLimited Partner;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to Partnership Pledge Agreement executed by the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement Parent and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the sameLimited Partner;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified Parent Pledge Agreement executed by the Secretary of such BorrowerParent;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued Limited Partner Guaranty executed by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictionLimited Partner;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued UCC-1 financing statements executed by the appropriate officer of Parent and the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsLimited Partner;
(h) Agent shall have received a the certificate evidencing the Capital Stock of insurancethe Limited Partner, together with related stock powers executed by the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counselParent;
(i) Agent shall have received a UCC-3 financing statement executed by the Closing Date Business Plan certified by an officer Company relating to each UCC-1 financing statement that has been filed of Borrower as being such officer's good faith best estimate of record with respect to the financial performance of Borrower during the period covered therebyCorporate Borrower;
(j) Agent shall have received new UCC-1 financing statements executed by the Company to be filed in each jurisdiction in which a Collateral Access Agreement relative financing statement was filed with respect to the Corporate Borrower's location in Quincy, Massachusetts;
(ki) certificate of the Secretary of State of the State of Texas as to existence and good standing of the Corporate Borrower; (ii) copies certified of a recent date by the Secretary of State of the State of Delaware, of the certificate of incorporation and all amendments thereto of the Limited Partner;
(l) a copy of (i) the resolutions of each of the Parent, certified as of the Closing Date by the Secretary or an Assistant Secretary of the Parent, duly authorizing the execution, delivery and performance of (a) the Partnership Pledge Agreement and the Parent Pledge Agreement for itself and (b) this Agreement and the Note Modification Agreement by the Parent as the general partner of the Company and on behalf of the Company, (ii) a certificate as to the incumbency and authority of the Person or Persons executing and delivering the Partnership Pledge Agreement, the Parent Pledge Agreement, this Agreement and the Note Modification Agreement, for itself or on behalf of the Company, as the case may be, and (iii) such other documents and evidence as the Agent shall have received opinions may reasonably request with respect to the Company, the Parent or this transaction including, without limitation, the taking of Borrower's counsel all partnership and corporate action and compliance with the conditions set forth herein, in each case in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and the Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;; and
(m) Agent shall have received a copy of (i) the resolutions of the Limited Partner, certified as of the Closing Date by the Secretary or an Assistant Secretary of the Limited Partner, duly authorizing the execution, delivery and performance of the Partnership Pledge Agreement and the Limited Partner Guaranty, (ii) a certificate from an officer as to the incumbency and authority of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed the Person or Persons executing and all taxes upon such Borrower or its properties, assets, incomedelivering the Partnership Pledge Agreement, and franchises (including real property taxes iii) such other documents and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are evidence as the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that may reasonably request with respect to the best Limited Partner including, without limitation, the taking of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission all corporate action and compliance with the conditions set forth herein, in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), each case in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998Agent; and
(rn) all other documents favorable, signed opinions addressed to the Agent and legal the Lenders from Bracxxxxx & Xattxxxxx, X.L.P., counsel to the Company, the Parent and the Limited Partner and their respective Subsidiaries, as to such matters in connection with this Agreement and the transactions contemplated hereby contemplated, as the Agent may reasonably request. The acceptance of the benefits of the initial Credit Event shall constitute a representation and warranty by the Company to the Agent and each of the Lenders that all of the conditions specified in this Agreement Section 5.01 shall have been delivered, executed, satisfied or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counselwaived as of that time.
Appears in 1 contract
Samples: Credit Agreement (Texas Petrochemical Holdings Inc)
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Bank to make the initial Initial Advance is on the Loan pursuant to this Agreement shall be subject to the fulfillment, to the satisfaction of Agentall of conditions precedent set forth in this Section. In the event that any condition precedent is not so satisfied but Bank elects to make the Initial Advance on the Loan notwithstanding the same, each Lender, such election shall not constitute a waiver of such condition and their respective counsel, of each of the following conditions on or before the Closing Date:condition shall be satisfied prior to any subsequent Advance.
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary All of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document Loan Documents shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Serviceseffect and binding and enforceable obligations of Borrowers and, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower extent that it is a party and authorizing specific officers thereto or otherwise bound thereby, of such Borrower to execute the same;each other Person who may be a party thereto or bound thereby.
(eb) Agent shall have received copies of each Borrower's Governing DocumentsAll actions, as amendedproceedings, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form instruments and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns documents required to be filed such Borrower have been timely filed carry out the borrowings and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the 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 legal counsel for Bank, and said counsel shall have been furnished with such certified copies of actions and proceedings and such other instruments and documents as they shall have requested.
(c) Each Loan Party shall have performed and complied with all agreements and conditions contained in the Loan Documents applicable to it and which are then in effect.
(d) Borrowers shall have delivered; or caused to have been delivered, to Bank or done or caused to have been done, to Bank’s satisfaction each and every of the following items:
(1) This Agreement (together with all addenda, schedules, exhibits, certificates, opinions, financial statements and other documents to be delivered pursuant hereto), the Note, the Deeds of Trust and all other Loan Documents duly executed, acknowledged (if required) and delivered by Borrowers and any Person who is a party thereto.
(2) (i) Copies of resolutions of the board of directors, partners or members or managers, as applicable, of each Loan Party evidencing approval of the borrowing hereunder and the transactions contemplated by the Loan Documents, and authorizing the execution, delivery and performance by each Loan Party of each Loan Document to which it is a party or by which it is otherwise bound, which resolutions shall have been certified by a duly authorized officer, partner or other representative, as applicable, of each Loan Party as of the date of this Agreement as being complete, accurate and in full force and effect; (ii) incumbency certifications of a duly authorized officer, partner or other representative, as applicable, of each Loan Party, in each case, identifying those individuals who are authorized to execute the Loan Documents for and on behalf of such Person(s), respectively, and to otherwise act for and on behalf of such Person(s); (iii) certified copies of each of such Person(s)’ articles of incorporation and bylaws, partnership agreement, certificate of limited partnership, articles of organization, regulations or operating agreement, as applicable, and all amendments thereto; and (iv) certificates of existence, good standing and authority to do business, as applicable, certified substantially contemporaneously with the date of this Agreement, from the state or other jurisdiction of each of such Person(s)’ organization and from every other state or jurisdiction in which such Person is required, under applicable law, to be qualified to do business.
(3) Proof that appropriate security agreements, financing statements, mortgages, deeds of trust, collateral and such additional documents or certificates as may be required by Bank and/or contemplated under the terms of any and every Loan Document, and such other documents or agreements of security and appropriate assurances of validity, perfection and priority of Lien as Bank may request shall have been executed and delivered by the appropriate Persons and recorded or filed in such jurisdictions and such other steps shall be have been taken as necessary to perfect, subject only to Permitted Encumbrances, the Liens granted thereby.
(4) An opinion of Borrowers’ legal counsels, dated as of the date of this Agreement, as to enforceability and authority issues and covering such other matters as are required by Bank and which are otherwise reasonably satisfactory in form and substance satisfactory to AgentBank.
(5) A UCC, each Lendertax lien and judgment lien record search, disclosing no notice of any Liens or encumbrances filed against any of the Mortgaged Property, other than the Permitted Encumbrances.
(6) Evidence of insurance coverage as required by this Agreement and the Deeds of Trust.
(7) The Title Policy (or the Title Company’s unconditional commitment to issue the Title Policy upon recordation of the Deeds of Trust).
(8) If requested by bank, an environmental audit report covering the Primary Collateral, in form and content and conducted and prepared by an environmental consultant reasonably acceptable to Bank. Borrowers agree that Bank may disclose the contents of such environmental audit report to Governmental Authorities and Borrowers shall deliver to Bank the written consent to such disclosure from the respective environmental consultant.
(9) Evidence that none of the Primary Collateral is located within any designated flood plain or special flood hazard area (as may be shown on the surveys delivered to Bank or other evidence acceptable to Bank) or, in lieu thereof at Bank’s request, evidence that Borrowers have applied for and received flood insurance covering the insurable Improvements in the maximum coverage available to Bank.
(10) To the extent portions of the Primary Collateral have been platted, full-size, single sheet copies of all recorded subdivision or plat maps of the Primary Collateral approved (to the extent required by Governmental Requirements) by all Governmental Authorities, if applicable, and their respective counsellegible copies of all instruments representing exceptions to the state of title to the Primary Collateral.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Agent and their respective its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 151, 19982001;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter, together with UCC statements and other documentation evidencing the cancellation by Existing Lender to Agent of all financing statements evidencing its Liens in and to the properties and assets of Borrower;
(iii) the Suretyship Intellectual Property Security Agreement;; and
(iv) the Fee Letter;Lockbox Agreements.
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(dc) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(ed) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(fe) Agent shall have received a certificate of status with respect to each Borrower, dated as within 10 days of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(gf) Agent shall have received certificates of status with respect to each Borrower, each dated as within 15 days of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(hg) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, Agent and their respective its counsel;
(h) Agent shall have received duly executed certificates of title with respect to that portion of the Collateral that is subject to certificates of title;
(i) Agent shall have received such Collateral Access Agreements from lessors (including the Closing Date Business Plan certified by an officer lessor of Borrower Borrower's distribution facility located at 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxx), warehousemen, bailees, Approved Vendors, and other third Persons as being such officer's good faith best estimate of the financial performance of Borrower during the period covered therebyAgent may require;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions an opinion of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their its sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(mk) Agent shall have received a certificate from an officer of each Borrower certifying satisfactory evidence that all tax returns required to be filed such by Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 for such taxes that are the subject of a Permitted Protest;
(nl) Agent and its counsel shall have received a certificate from an officer completed its review of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in consigned inventory arrangements, and be satisfied (which any Borrower operatesmay require an opinion letter from Borrower's counsel, except such complaints that have been fully disclosed to instituting one or more reserves, receipt of intercreditor agreements, or a combination of the Lenders and are satisfactory to Agent and the Lendersforegoing) with respect thereto;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(rm) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent, each Lender, Agent and their respective its counsel.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Foothill to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Foothill and their respective its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15March 21, 19981997;
(b) Agent Existing Lender shall have executed and delivered the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination of its liens and security interests in and to the properties and assets of Borrower;
(c) Foothill shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements (and any comparable Canadian filings); PROVIDED that, if the transactions contemplated by this Agreement do not close or the initial Advance is not made by Foothill for any reason, Foothill shall promptly, upon Borrower's request and at Borrower's expense, deliver to Borrower termination statements, duly executed by Foothill and in proper form, with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettsrespect to all financing statements (or comparable Canadian filings) that Foothill has filed against Borrower in any jurisdiction;
(cd) Agent Foothill shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Lockbox Agreements with respect to each Lockbox Bank other than the Royal Bank of Canada;
ii) the Disbursement Letter;
(iiiii) the Pay-Off LetterGuarantees;
(iiiiv) the Canadian Security Agreements;
v) the Pledge Agreements;
vi) the Suretyship Agreement;; and
(ive) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent Foothill shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(ef) Agent Foothill shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(fg) Agent Foothill shall have received a certificate of status with respect to each Borrower, dated as within ten (30) days of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(gh) Agent Foothill shall have received certificates of status with respect to each Borrower, each dated as within fifteen (40) days of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute have a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(hi) Agent Foothill shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10SECTION 6.10 hereof, the form and substance of which shall be satisfactory to Agent, each Lender, Foothill and their respective its counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts[intentionally omitted];
(k) Agent Borrower shall have used its best efforts, to the reasonable satisfaction of Foothill, to cause Foothill to have received Collateral Access Agreements from the real property lessors of the premises where the Equipment consisting of telephone switches or Borrower's AS400 computer system is located, and from lessors or secured financers of such Equipment to or of Borrower;
(l) Foothill shall have received opinions of Borrower's California, Canadian, Florida, and special telecommunications outside counsel in form and substance satisfactory to Agent and each Lender Foothill in their its sole discretion;
; PROVIDED that Foothill agrees to bear the lesser of (li) Agent one-half and Agent's counsel shall have been provided with a copy of each Carrier Agreement out-of-pocket expenses actually incurred by Borrower in respect of a Material Carrierobtaining such opinions, the Bell Xxxantic Interconnection Agreementas substantiated by Borrower to Foothill by reasonable documentation, and each agreement in respect of any Indefeasible Right to Use granted to Borrower(ii) $15,000, certified by an officer of crediting such amount against fees otherwise due from Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreementon the Closing Date;
(m) Agent Foothill shall have received a certificate from an officer of each Borrower certifying satisfactory evidence that all tax returns required to be filed such by Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent Foothill and Foothill's counsel shall have received been provided with a certificate from an officer true and complete copy of each Billing Services Agreement and shall have had a reasonable opportunity to review each Billing Services Agreement, and Foothill either (i) shall have advised Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made each Billing Services Agreement is an Approved Billing Services Agreement, or, (ii) as to any public utilities commission Billing Services Agreements that are not Approved Billing Services Agreements, Foothill shall have advised Borrower that Foothill nevertheless is prepared to close (with the LEC Accounts relating to such non-approved Billing Services Agreements, if any, not constituting Eligible LEC Accounts) and Borrower shall have agreed in any jurisdiction in which any Borrower operates, except writing to such complaints that have been fully disclosed arrangement with respect to the Lenders and are satisfactory to Agent and the Lendersnon-approved Billing Services Agreements;
(o) Agent either (i) Foothill shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory LEC Non-Offset Agreement with respect to each LenderBilling Services Agreement, acknowledging or (ii) with respect to any Billing Services Agreement as to which Foothill has not received a LEC Non-Offset Agreement, Foothill shall have advised Borrower that Chase's liens Foothill nevertheless is prepared to close (with the LEC Accounts relating to such Billing Services Agreements, if any, not constituting Eligible LEC Accounts) and Borrower shall have agreed in the Equipment leased by Borrower from Chase does not extend writing to the Accounts generated by such Equipmentarrangement with respect to non-approved Billing Services Agreements;
(p) Agent Foothill shall have received payment and reviewed, and shall have expressed no objection to, the terms of all accrued and unpaid Lender Group Expenseseach Carrier Agreement requested to be reviewed by Foothill;
(q) Agent Foothill shall have completed a filed survey by its examiners, and the results shall be acceptable to Foothill;
(r) Foothill shall have received a certificate reference checks and personal credit reports with respect to key management of Borrower and the Principals, and the results shall be acceptable to Foothill;
(s) Foothill shall have received and reviewed personal financial statements from an officer each Principal, which shall be acceptable to Foothill;
(t) Except to the extent otherwise provided for in SECTION 3.3(d) AND (e), Foothill shall have received possession of each the Pledged Shares together with duly executed blank stock powers with respect thereto;
(u) On the Closing Date, after giving effect to all payments, transfers, and transactions contemplated to occur on such date by the Loan Documents, except for, and immediately prior to giving effect to, the payment of any fees due Foothill on the Closing Date and the reimbursement of any Foothill Expenses due to be reimbursed on the Closing Date, Borrower certifying that there has been no Material Adverse Change in the financial condition shall have Total Availability of such Borrower or the Collateral since July 31, 1998not less than $1,000,000; and
(rv) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, delivered or executed or recorded and shall be in form and substance satisfactory to AgentFoothill and its counsel. In the event the transactions contemplated hereby do not close or Foothill declines to make the initial Advance hereunder for any reason, each Lenderthen Borrower shall not be obligated to pay any of the fees set forth in SECTION 2.8, and their respective counselbut Borrower shall be obligated to repay any Foothill Expenses due Foothill.
Appears in 1 contract
Samples: Loan and Security Agreement (Communication Telesystems International)
Conditions Precedent to the Initial Advance. The obligations of each Lender under this Agreement and the obligation of the each Lender Group (or any member thereof) to make the initial Initial Advance is shall be subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions precedent that on or before the Closing Date:
(a) All terms, conditions and documentation in connection with this Credit Agreement shall be acceptable to the Closing Date shall occur on or before October 15, 1998;Lenders.
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary The making of the Commonwealth of Massachusetts and Revolver/Term Commitment shall not contravene any Law applicable to the City Clerk of Quincy, Massachusetts;Administrative Agent or any Lender.
(c) Agent Each Lender shall have received each a Certificate from an Authorized Officer stating that no Material Adverse Change, as determined by the Lenders, shall have occurred and be continuing in the Systems, business, assets, prospects, or financial condition of the following documentsbusinesses of the Borrower (as operated by the Restricted Subsidiaries) since December 31, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 391996.
(d) Agent All proceedings of the Borrower, the Restricted Subsidiaries and each other GCI Entity taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall have received a certificate from the Secretary of each Borrower attesting be reasonably satisfactory in form and substance to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent Lenders. Each Lender shall have received copies of each Borrower's Governing Documents, as amended, modified, all documents or supplemented to the Closing Date, certified by the Secretary of other evidence that it may reasonably request in connection with such Borrower;transactions.
(fe) Agent Each Lender shall have received a certificate an executed copy of status with respect to each Borrowerthis Agreement, dated as of a date within a reasonable proximity to the Closing DateRevolving Credit Agreement, such certificate and all documents required to be issued by the appropriate officer of the jurisdiction of organization of such Borrowerdelivered pursuant thereto, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent and its respective Notes, duly completed and correct. The Lenders shall have received certificates copies of status with respect to each the Fee Letters signed by the Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer applicable. Each of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel following shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that delivered to the best Administrative Agent on behalf of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to the Administrative Agent, Special Counsel and each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend Lender to the Accounts generated extent required by the Administrative Agent: Each other Loan Paper requested by the Administrative Agent, including, 100\269\91946 43 without limitation, all guarantees, pledge agreements, security agreements, mortgages, deeds of trust, collateral assignments and other agreements granting any interest in any collateral.
(f) The Borrower shall have delivered to each Lender a Certificate, dated the Closing Date, executed by an Authorized Officer on behalf of each GCI Entity, certifying that (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in Article V hereof are true and correct, (iii) each of the GCI Entities has complied with all agreements and conditions to be complied with by it under the Loan Papers by such Equipment;date, (iv) that the attached resolutions for each GCI Entity are the true, accurate and complete resolutions authorizing the corporate restructuring, the incurrence and performance of the Facility and the Loan Papers, (v) that the attached copies of certified articles of incorporation, or other articles of organization, certificates of good standing, certificates of existence and incumbency certificates for each GCI Entity are (A) not more than 30 days old and certified by the appropriate secretary of state of other governmental organization and (B) represent the true and accurate certificate for each such entity, and (vi) the attached copies of by-laws or other organizational documents represent the true and accurate by-laws or other organizational documents for each GCI Entity in effect on the Closing Date.
(pg) Agent Each Lender shall have received payment opinions of all accrued (i) Sxxxxxx & Hxxxxx, L.L.C. corporate counsel to the Borrower, the Restricted Subsidiaries and unpaid Lender Group Expenses;
each other GCI Entity, dated the Closing Date, acceptable to the Lenders and otherwise in form and substance satisfactory to the Lenders and Special Counsel, with respect to this loan transaction and otherwise, including, without limitation, opinions (qA) Agent shall have received a certificate from an officer to the valid and binding nature of the Loan Papers, (B) to the enforceability of the Loan Papers, (C) to the power, authorization and corporate matters of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters Person taken in connection with the transactions contemplated by the Loan Papers, (D) that the execution, delivery and performance by the GCI Entities, as applicable, of the Agreement and the Loan Papers does not violate any of the terms of the Borrower's, the Restricted Subsidiaries' or any other GCI Entities' agreements, (E) regarding the issuance and related opinions to the Senior Notes, (F) the corporate restructuring in order to effectuate this Agreement and the issuance of the Senior Notes, (G) regarding the equity issuance required by Section 4.01(j) hereof, and (H) to such other matters as are reasonably requested by Special Counsel, and (ii) such local counsel opinions relating to the Collateral and such other matters as are requested by the Administrative Agent and Special Counsel. Copies of all opinions delivered in connection with the equity issuance required by Section 4.01(j) hereof and the Senior Notes shall be delivered to the Administrative Agent together with a reliance letter thereon.
(h) Each Lender shall have been deliveredreceived an opinion of inhouse counsel to the Borrower and to each other GCI Entity, executeddated as of the Closing Date, or recorded acceptable to the Lenders and shall be otherwise in form and substance satisfactory to Agentthe Lenders and Special Counsel, with respect to this transaction, and final approval shall have been received from the FCC regarding any transfer of any FCC license. 100\269\91946 44
(i) GCII shall have (i) issued the Senior Notes in an amount not less than $180,000,000, on terms and conditions, and subject to documentation, satisfactory to the Administrative Agent and each Lender, and their respective counsel(ii) downstreamed the net proceeds of the debt issuance described in (i) above to the Borrower as equity.
(j) GCI shall have raised not less than $50,750,000 in equity on terms and conditions acceptable to the Administrative Agent and the Lenders and downstreamed the net proceeds of the equity issuance to the Borrower as equity, and the Borrower shall have received not less than $47,133,000 as an equity contribution from such proceeds, on terms and conditions acceptable to the Administrative Agent and each Lender.
(k) No management agreement with any Person shall be in existence at the Parents, the Borrower or any Restricted Subsidiaries, except the Prime Management Agreement.
(l) All proceedings of the Parents, the Borrower and the Subsidiaries of the Parents and the Borrower taken in connection with the transactions contemplated hereby, and all documents incidental thereto, shall be satisfactory in form and substance to each Lender. The Administrative Agent and each Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions. No Material Adverse Change, as determined by the Lenders, shall have occurred and be continuing in the financial markets.
(m) All Obligations outstanding under the existing credit facilities of GCI Cable, Inc. and GCI Communication Corp. shall have been paid in full and released.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) Banks to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, Banks and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15June 13, 19982002;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent Banks shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Advance Request Form and Disbursement Letter;
(ii) the Pay-Off Letterany notes required or provided by Banks for execution by Borrower to document Facility A and/or Facility B;
(iii) the Suretyship Agreement;any other instruments required or provided by Banks for execution by Borrower to document Facility A and/or Facility B.
(ivc) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent Banks shall have received a certificate from the Secretary of each Borrower an Authorized Person attesting to the resolutions corporate authorization of such Borrower's Board of Directors Borrower authorizing its the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such individuals associated with and authorized by Borrower to execute the same;
(ed) Agent Banks shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;an Authorized Person.
(fe) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent Banks shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.106.8, the form and substance of which shall be satisfactory to Agent, each Lender, Banks and their respective counsel;
(if) Agent Banks shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying evidence that all tax returns required to be filed such by Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest; such satisfactory evidence shall be provided in the form of written certification by Borrower's Chief Financial Officer to the effect that the foregoing matters in this paragraph have been fully satisfied, unless Banks in their discretion shall request further evidence thereof;
(ng) Agent Borrower shall have received a certificate from an officer paid (i) the fees payable on the Closing Date and (ii) all expenses of each Borrower certifying that to Banks incurred in connection with the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operatestransactions contemplated by this Agreement, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent including without limitation asset searches, credit reports, and the Lendersfees and expenses of its outside counsel, as of the Closing Date;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(rh) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to AgentBanks and their counsel;
(i) Banks shall have given, each Lenderin their sole discretion, final credit approval of the credit facilities set forth in this Agreement;
(j) Banks shall have been satisfied, in their sole discretion, with the results of a review of Borrower's most recent interim financial statement;
(k) No adverse changes in Borrower's most recent interim financial statement, or in Borrower's profits, property, business prospects, or financial condition, shall have occurred since the Banks' review of Borrower's most recent financial statement for the period ending March 30, 2002; and
(l) Banks shall have completed and been satisfied, in Banks' sole discretion, with Borrower's trade, credit, and their respective counselbackground checks, conducted by or for Banks, utilizing resources and data bases selected by Banks.
(m) Banks shall have received the written opinion of counsel for Borrower, in form and substance satisfactory to Banks.
(n) Banks shall have received evidence satisfactory to them that the Subordinate Debt is subordinate to the Loans.
Appears in 1 contract
Samples: Loan Agreement (Kennedy Wilson Inc)
Conditions Precedent to the Initial Advance. The obligation of the each Lender Group (or any member thereof) to make the initial Advance is subject to (i) receipt by the fulfillmentAdministrative Agent of the following items which are to be delivered, in form and substance reasonably satisfactory to each Lender, with a copy (except for the satisfaction of Agent, Notes and this Agreement) for each Lender, and their respective counsel, of each (ii) satisfaction of the following conditions on or before the Closing Datewhich are to be satisfied:
(a) A loan certificate of each Obligor required by the Closing Date shall occur on Administrative Agent to be delivered certifying as to the accuracy of its representations and warranties in the Loan Documents, certifying, in the case of any such Obligor, that no Default or before October 15Event of Default has occurred, 1998and including a certificate of incumbency with respect to each Authorized Signatory, and including (i) a copy of the articles or certificate of incorporation or other organizational documents of such Obligor, certified to be true, complete and correct by the secretary of state of its state of organization, (ii) a copy of a certificate of good standing and a certificate of existence for its state of organization and, in the case of any such Obligor, each state in which the nature of its business requires it to be qualified to do business, (iii) a copy of such Obligor's bylaws, partnership agreement or similar document, certified to be true, complete and correct by its secretary or general partner, as the case may be, and (iv) a copy of corporate or similar resolutions authorizing the execution, delivery and performance of the Loan Documents to be executed by such Obligor;
(b) Agent shall have received all financing statements a certificate of incumbency with respect to each Authorized Signatory of each Obligor not required to be delivered pursuant to clause (a) immediately above, together with a copy of corporate or similar resolutions authorizing the execution, delivery and fixture filings required by performance of the Lender Group, duly Loan Documents to be executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusettssuch Obligor;
(c) Agent shall have received a duly executed Note, payable to the order of each Lender and in an amount for each Lender equal to its Specified Percentage of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement LetterCommitment;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary opinions of counsel to each Borrower attesting Obligor addressed to the resolutions of such Borrower's Board of Directors authorizing its executionLenders and in form and substance reasonably satisfactory to the Administrative Agent and Special Counsel, deliverydated the Agreement Date, and performance covering certain of this Agreement the matters set forth in Sections 4.1(a), (b), (c), (h), (m), (n) and (p) and such other matters incident to the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute transactions contemplated hereby as the sameAdministrative Agent or Special Counsel may reasonably request;
(e) reimbursement for the Administrative Agent shall have received copies of each Borrowerfor Special Counsel's Governing Documents, as amended, modified, or supplemented to reasonable and customary fees (on an hourly basis) and expenses rendered through the Closing Agreement Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate evidence that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy all proceedings of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters Obligor taken in connection with the transactions contemplated by this Agreement and the other Loan Documents shall be reasonably satisfactory in form and substance to the Administrative Agent and Special Counsel; and the Administrative Agent shall have received copies of all documents or other evidence which the Administrative Agent or Special Counsel may reasonably request in connection with such transactions;
(g) any fees or any expenses required to be paid pursuant to Section 2.4(c) hereof, the Administrative Agent Fee Letter and the Arrangement Fee Letter;
(h) simultaneously with the making of the initial Advance, executed UCC-3 Termination Statements to be filed in appropriate jurisdictions to terminate all Liens against assets of the Borrower and its Subsidiaries other than Permitted Liens (or written agreements from each holder of such Liens to promptly execute such Termination Statements);
(i) all Indebtedness of the Borrower and its Subsidiaries not otherwise permitted pursuant to Sections 7.1 and 7.2 hereof shall have been delivered, executed, (or recorded and shall be consummated simultaneously with the initial Advance hereunder) refinanced or repaid in full and all obligations of the Borrower and its Subsidiaries under such Indebtedness shall terminate;
(j) the Compliance Certificate, duly executed as of the Fiscal Year ended December 29, 1998, evidencing that no Default or Event of Default would have occurred at the end of such Fiscal Year had this Agreement been in effect at such time and had the Transaction occurred at such time;
(k) the duly executed Subsidiary Guaranty executed by all Guarantors (which shall be all Subsidiaries of the Borrower which are not Non-Guarantors);
(l) the Schedule of Non-Guarantors in the form of Schedule 10 hereto;
(m) all Transaction Documents, which shall be on terms and conditions acceptable to the Determining Lenders;
(n) the Transaction shall have occurred contemporaneously pursuant to the terms and conditions of the Transaction Documents;
(i) financial statements of the Borrower and its Subsidiaries for the Fiscal Year ended December 29, 1998, audited by independent public accountants of recognized standing, (ii) unaudited financial statements of each of the Acquired Companies for the fiscal year ended December 31, 1998, (iii) a pro forma balance sheet of the Borrower and its Subsidiaries, taking into account the Transaction as if the Transaction had occurred on December 29, 1998, and reflecting estimated purchase price accounting adjustments, and (iv) such other information relating to the Transaction, in each case in form and substance satisfactory to the Administrative Agent;
(p) all requisite approvals or consents of all Tribunals or third parties with respect to the Transaction and other transactions hereby to the extent required shall be obtained;
(q) after giving effect to the Transaction, each Lenderthere shall have occurred no material adverse change in the business, assets, operations, prospects or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole since December 29, 1998;
(r) there shall exist no Default or Event of Default hereunder;
(s) no order, judgment, injunction or decree of any Tribunal shall purport to enjoin or retain any Lender from making an Advance;
(t) all representations and warranties of the Borrower under this Agreement shall be true and correct, both before and after giving effect to the application of the proceeds of the Advance;
(u) There shall be no Litigation pending against, or, to the Borrower's knowledge, threatened against the Borrower or any of its Subsidiaries, or in any other manner relating directly and adversely to the Borrower or any of its Subsidiaries, or any of their respective counselproperties, in any court or before any arbitrator of any kind or before or by any governmental body which could reasonably be expected to have a Material Adverse Effect; and
(v) in form and substance reasonably satisfactory to the Administrative Agent and Special Counsel, such other documents, instruments and certificates as the Administrative Agent or any Lender may reasonably require in connection with the transactions contemplated hereby.
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of the Lender Group (or any member thereof) each Bank to make the its initial Advance to the Company is subject to the fulfillment, to condition that the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincyfollowing, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel all in form and substance satisfactory to Agent and each Lender in their sole discretionthe Agent:
(a) this Agreement executed by the Company;
(lb) Agent one Note for each Bank, each executed by the Company and Agent's counsel shall have been provided with a copy payable to the order of each Carrier Agreement said Bank in respect the amount of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreementits Commitment;
(mc) Agent shall have received a certificate from an officer Guaranty, consisting of Article IX hereto, executed by each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquencyof the Subsidiaries of the Company, except 40 such taxes that are as otherwise agreed, as Guarantors, for the subject benefit of a Permitted Protestthe Banks;
(nd) Agent shall have received each of the following security documents (the "Security Documents") granting a certificate from an officer of each Borrower certifying that first and prior Lien or security interest on the Collateral to the best Agent for the benefit of itself and the Banks as security for the Supplemental Commitment, pro rata, and a second lien, subordinate only to said first and prior Lien, to the Collateral Agent for the Banks and the Other Senior Lenders as security for the Obligations, for the Additional Exposure owed to TCB, and for certain Indebtedness owed to the Other Senior Lenders, all to the extent described therein:
(i) Security Agreements executed by the Company and its domestic Subsidiaries for the benefit of the Collateral Agent covering all personal property assets of the Company and each of such Borrower's knowledge there are no outstanding complaints against Subsidiaries (except as otherwise agreed to by the Banks and the Other Senior Lenders and provided therein), accompanied by all documents, instruments
(ii) Pledge Agreements executed by the Company and any Borrower made to any public utilities commission of its Subsidiaries owning stock in any jurisdiction in which any Borrower operates, other Subsidiary (except such complaints that have been fully disclosed as otherwise agreed to the Bank and the Other Senior Lenders and are satisfactory provided therein) for the benefit of the Collateral Agent pledging to the Collateral Agent all stock in any domestic Subsidiaries or Affiliates and 65% of all stock in any foreign Subsidiaries owned by any of the Lenderspledging parties, accompanied by original stock certificates evidencing such shares and executed stock powers for such certificates;
(oiii) Mortgages or deeds of trust executed by the Company and its Subsidiaries for the benefit of the Collateral Agent shall have received granting to the Collateral Agent a letter from Chase Equipment LeasingLien on all real property, Inc. ("Chase")including owned real estate, leases, mineral interests or similar items owned by the Company or any of its Subsidiaries, except as otherwise agreed to by the Banks and the Other Senior Lenders, accompanied by, if reasonably requested by the Collateral Agent, the following, all in form form, substance and substance amount reasonably satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.:
Appears in 1 contract
