Conditions Precedent to the Initial Credit Extension. The obligation of the Lenders to effect any Credit Extension is subject to the condition precedent that, on or before the day of the first Credit Extension, and in any event on or before March 10, 2008, the Administrative Agent shall have received the following, each in form and substance satisfactory to the Required Lenders: (a) Such Notes as shall be requested by any Lenders, each properly executed on behalf of the Borrower. (b) The Security Agreement, properly executed on behalf of the Borrower, together with: (i) Original stock certificates (or other applicable evidence of ownership) evidencing all issued and outstanding Capital Stock of FIB, together with stock powers executed in blank by the Borrower. (ii) Financing statements with respect to the Borrower to be filed with the Secretary of State of Montana to perfect the Liens created by the Security Agreement, to the extent such Liens can be perfected by filing. (iii) Current searches of the UCC records of the Secretary of State of Montana and any other applicable records showing that no state or federal tax liens have been filed and remain in effect against the Borrower, and that no financing statements or other notifications or filings have been filed and remain in effect against the Borrower, other than those for which the Administrative Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1. (c) A certificate of the secretary or other appropriate officer of the Borrower (i) certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder have been duly approved by all necessary action of the Governing Board of the Borrower, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of the Borrower, together with such copies, and (iii) certifying the names of the officers of the Borrower that are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers. The Lender Parties may conclusively rely on such certificate until the Administrative Agent receives a further certificate of the Secretary or Assistant Secretary of the Borrower canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate. (d) Certificates of good standing for the Borrower from the Secretaries of State (or other appropriate officials) of Montana and South Dakota, dated not more than 30 days prior to the date hereof. (e) A certificate of the secretary or other appropriate officer of FIB (i) certifying that attached to such certificate are true and correct copies of the Organizational Documents of FIB, together with such copies, and (ii) certifying that the execution, delivery and performance of the Security Agreement by the Borrower will not violate any law or agreement applicable to FIB. (f) The projections and balance sheet described in Section 4.7 . (g) A signed copy of an opinion of counsel for the Borrower and FIB, addressed to the Administrative Agent and the other Lender Parties, with respect to the matters contemplated by the Loan Documents. (h) Evidence that, concurrent with the making of the Term Advances and the initial Revolving Borrowing, (i) all indebtedness, if any, outstanding under the Existing Wxxxx Fargo Credit Agreement, will be paid in full, and Wxxxx Fargo’s obligation to make advances or grant other financial accommodations under the Existing Wxxxx Fargo Credit Agreement will be terminated, (ii) the Borrower will have received not less than $90,000,000 in proceeds of Subordinated Debt and Trust Preferred Securities (of which not more than $20,000,000 shall be proceeds of Subordinated Debt other than Trust Preferred Securities), (iii) First Western Bancorp will accept the issuance of perpetual preferred stock of the Borrower having a liquidation preference of not less than $50,000,000 in partial payment of the purchase price with respect to the First Western Acquisition, (iv) all requisite approvals of any applicable Governmental Authority and the Directors and Shareholders of First Western Bancorp with respect to the First Western Acquisition have been obtained, and (v) the First Western Acquisition will be fully consummated. (i) Evidence that the Borrower has expended not less than $45,000,000 of cash on hand to consummate the First Western Acquisition. In making such determination, the Borrower may include up to $20,000,000 of proceeds of the initial Revolving Borrowing but shall not include any other proceeds of the indebtedness arising hereunder or any proceeds of Subordinated Debt, Trust Preferred Securities or perpetual preferred stock. (j) Payment of all fees and expenses then due and payable pursuant to Sections 2.10 and 9.6(a) hereof.
Appears in 1 contract
Conditions Precedent to the Initial Credit Extension. The obligation of the Lenders Lender Parties to effect any Credit Extension is subject to the condition precedent that, on or before the day of the first Credit Extension, and in any event on or before March 10, 2008the Closing Date, the Administrative Agent shall have received the following, each in form and substance satisfactory to the Required LendersAdministrative Agent:
(a) Such such Notes as shall may be requested by any Lenders, each properly executed on behalf of the Borrower.;
(b) The Security the Support and Subordination Agreement, properly executed on behalf of the Borrower and GPRE;
(c) the Perfection Certificate, properly executed on behalf of the Borrower;
(d) the Security Documents, each properly executed on behalf of the Borrower, together with:
(i) Original stock certificates (or other applicable evidence of ownership) evidencing all issued and outstanding Capital Stock of FIB, together with stock powers executed in blank by the Borrower.
(ii) Financing financing statements with respect to the Borrower to be filed with in each jurisdiction that, in the Secretary opinion of State of Montana the Administrative Agent, is reasonably necessary to perfect the Liens created by the Security AgreementDocuments, to the extent such Liens can be perfected by filing.;
(iiiii) Current current searches of appropriate filing offices in each jurisdiction in which the UCC records Borrower is organized, has an office or otherwise conducts business (including, but not limited to, patent and trademark offices, secretaries of the Secretary of State of Montana state and any other applicable records county recorders) showing that no state or federal tax liens Liens have been filed and remain in effect against the Borrower, and that no financing statements or other notifications or filings have been filed and remain in effect against the Borrower, other than those for which the Administrative Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1.;
(ciii) A certificate a control agreement in respect of each Brokerage Account and each deposit, securities and other account maintained by the Borrower, in each case properly executed on behalf of each of the parties thereto;
(e) a Second Amendment to each Existing Mortgage, properly executed on behalf of the Borrower, together with: (i) evidence of the recording thereof in the real estate records of the jurisdiction where the related Existing Property is located; and (ii) a final mortgagee’s title policy issued by a title insurance company acceptable to the Administrative Agent, in favor of the Administrative Agent, for the benefit of the Lender Parties, in an insured amount not less than $78,000,000 (in the aggregate), insuring that such Existing Mortgages (as amended by such Second Amendments) are valid and enforceable first-priority Liens, on the Borrower’s fee simple title (or leasehold estate, as the case may be) to the real estate and other real property therein described, free and clear of all standard exceptions and defects and Liens except such as the Administrative Agent in its sole discretion may approve, including, without limitation, the following endorsements: ALTA form 9.0, ALTA form 3.1 (with parking), contiguity, utility, last dollar, separate tax parcel, no special assessments, usury, forced removal, revolving credit, mortgage registry tax and such other endorsements as the Administrative Agent may reasonably require;
(f) a current, certified appraisal conforming to all applicable requirements of FIRREA establishing the fair market value of each Existing Property;
(g) a flood zone designation for each Existing Property;
(h) evidence of all insurance required by the terms of the Security Documents, including, but not limited to, flood insurance if the real estate described in any Existing Mortgage is located within the 100-year flood plain, together with certificates and loss payable endorsements showing the Administrative Agent, for the benefit of the Lender Parties, as mortgagee, additional insured and lender loss payee thereunder;
(i) certificates of the secretary or other appropriate officer of each of the Borrower and GPRE (i) certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which such Person is a party have been duly approved by all necessary action of the Governing Board of the Borrowersuch Person, and attaching true true, correct and correct complete copies of the applicable resolutions granting such approval, ; (ii) certifying that attached to such certificate certificates are true true, correct and correct complete copies of the Organizational Documents of the Borrowersuch Person, together with such copies, ; and (iii) certifying the names of the officers of the Borrower such Person that are authorized to sign the Loan Documents to which such Person is a party and other documents contemplated hereunder, together with the true signatures of such officers. The ; the Lender Parties may conclusively rely on such certificate certificates until the Administrative Agent receives a further certificate of the Secretary or Assistant Secretary of the Borrower such Person canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate.;
(dj) Certificates a certificate of good standing for each of the Borrower and GPRE from the Secretaries Secretary of State (or other the appropriate officialsofficial) of Montana and South Dakotathe state of formation of such Person, dated not more than 30 days prior to the date hereof.Closing Date;
(ek) A certificate the following financial information of the secretary or other appropriate officer of FIB Consolidated Group and the Borrower: (i) certifying that attached to such certificate are true consolidated and correct copies of consolidating financial statements for the Organizational Documents of FIBConsolidated Group for the fiscal year ending December 31, together 2010, with such copiesconsolidated financial statements audited by independent public accountants acceptable to the Administrative Agent, and interim financial statements for the Borrower for the period ended November 30, 2011, including balance sheets and statements of income and retained earnings prepared in conformity with GAAP; (ii) certifying a one-year (commencing January 1, 2012) business plan and pro-forma financial projections for the Borrower’s 2012 fiscal year, including an income statement, balance sheet and cash flow statement prepared in accordance with GAAP, except that footnotes required under GAAP shall not be included, showing compliance with the execution, delivery terms and performance conditions of this Agreement; and (iii) such other financial information as the Administrative Agent may request;
(l) a copy of the Security Agreement Borrower’s risk management policies and procedures (current as of the Closing Date), which have been duly approved by the Governing Board of the Borrower will not violate any law or agreement applicable and are acceptable to FIB.the Administrative Agent;
(fm) The projections and balance sheet described in Section 4.7 .
(g) A signed copy copies of an opinion opinions of counsel for the Borrower and FIB, GPRE addressed to the Administrative Agent and Agent, on behalf of the other Lender PartiesLenders, with respect to the matters contemplated by the Loan Documents.;
(hn) Evidence thatthe Fee Letter of even date herewith, concurrent with the making properly executed on behalf of the Term Advances and the initial Revolving Borrowing, (i) all indebtedness, if any, outstanding under the Existing Wxxxx Fargo Credit Agreement, will be paid in full, and Wxxxx Fargo’s obligation to make advances or grant other financial accommodations under the Existing Wxxxx Fargo Credit Agreement will be terminated, (ii) the Borrower will have received not less than $90,000,000 in proceeds of Subordinated Debt and Trust Preferred Securities (of which not more than $20,000,000 shall be proceeds of Subordinated Debt other than Trust Preferred Securities), (iii) First Western Bancorp will accept the issuance of perpetual preferred stock of the Borrower having a liquidation preference of not less than $50,000,000 in partial payment of the purchase price with respect to the First Western Acquisition, (iv) all requisite approvals of any applicable Governmental Authority and the Directors and Shareholders of First Western Bancorp with respect to the First Western Acquisition have been obtained, and (v) the First Western Acquisition will be fully consummated.Borrower;
(io) Evidence that the Borrower has expended not less than $45,000,000 of cash on hand to consummate the First Western Acquisition. In making such determination, the Borrower may include up to $20,000,000 of proceeds of the initial Revolving Borrowing but shall not include any other proceeds of the indebtedness arising hereunder or any proceeds of Subordinated Debt, Trust Preferred Securities or perpetual preferred stock.
(j) Payment payment of all fees and expenses then due and payable pursuant to Sections 2.10 2.12 and 9.6(a) hereof; and
(p) evidence satisfactory to the Administrative Agent and Farm Credit Services of America, FLCA, that the Borrower is eligible to obtain loans from Farm Credit Services of America, FLCA.
Appears in 1 contract
Samples: Credit Agreement (Green Plains Renewable Energy, Inc.)
Conditions Precedent to the Initial Credit Extension. The obligation of the Lenders to effect any Credit Extension is subject to the condition precedent that, on or before the day of the first Credit Extension, and in any event on or before March 10, 2008, the Administrative Agent shall have received the following, each in form and substance satisfactory to the Required Lenders:
(a) Such Notes as shall be requested by any Lenders, each properly executed on behalf of the Borrower.
(b) The Guaranty, duly executed by each Guarantor.
(c) The Security AgreementDocuments, each properly executed on behalf of the Borrowerappropriate Obligor and any other party thereto, together with:
(i) Original stock certificates (or other applicable evidence of ownership) evidencing all issued and outstanding Capital Stock of FIB, together with stock powers executed in blank by the Borrower.
(ii) Financing statements and other filings with respect to the Borrower each Obligor to be filed with in each jurisdiction and other offices which, in the Secretary opinion of State of Montana the Administrative Agent, is reasonably necessary to perfect the Liens created by the Security AgreementDocuments, to the extent such Liens can be perfected by filing.
(iiiii) Current searches of appropriate filing offices in each jurisdiction in which an Obligor is organized, has an office or otherwise conducts business (including but not limited to patent and trademark offices, secretaries of state and other offices to the UCC records of extent required by the Secretary of State of Montana and any other applicable records Administrative Agent) showing that no state or federal tax liens have been filed and remain in effect against the Borrowerany Obligor, and that no financing statements or other notifications or filings have been filed and remain in effect against the Borrowerany Obligor, other than those for which the Administrative Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1.
(ciii) Pursuant to the terms of the payoff letter described in subsection (d) below, the agreement of JPMorgan Chase Bank, National Association, to deliver to the Administrative Agent, the original stock certificates (or other applicable evidence of ownership) evidencing (i) all issued and outstanding Capital Stock of each Obligor (other than the Borrower), together with stock powers executed in blank by the relevant Obligor, and (ii) 65% of all issued and outstanding Capital Stock of each Subsidiary which is a Foreign Subsidiary.
(iv) stock powers executed in blank by the relevant Obligor with respect to the Capital Stock described in subsection (c)(ii) above.
(d) A certificate payoff letter in form and content acceptable to the Administrative Agent from JPMorgan Chase Bank, National Association, as administrative agent and collateral agent, together with evidence of payment in full of all Debt (other than certain letters of credit to be cash collateralized) of the Borrower arising from or related to the Amended and Restated Credit Agreement dated November 13, 2009, among the Borrower, certain lenders party thereto, JPMorgan Chase Bank, National Association, as administrative agent and collateral agent, and release of all related Liens.
(e) Evidence of all insurance required by this Agreement and the Security Documents, together with certificates showing the Administrative Agent, for the benefit of the Lender Parties, as lender loss payee and additional insured thereunder.
(f) Certificates of the secretary or other appropriate officer of the Borrower and each other Obligor (i) certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which the Borrower or such Obligor, as applicable, is a party have been duly approved by all necessary action of the Governing Board of the BorrowerBorrower or such Obligor, as applicable, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of the BorrowerBorrower or such Obligor, as applicable, together with such copies, and (iii) certifying the names of the officers of the Borrower or such Obligor, as applicable, that are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers. The Lender Parties may conclusively rely on such certificate until the Administrative Agent receives a further certificate of the Secretary or Assistant Secretary of the Borrower or such Obligor, as applicable, canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate.
(dg) Certificates A certificate of good standing for the Borrower and each other Obligor from the Secretaries Secretary of State (or other the appropriate officialsofficial) of Montana and South Dakotathe state of formation of the Borrower or such Obligor, as applicable, dated not more than 30 days prior to the date hereofClosing Date.
(e) A certificate of the secretary or other appropriate officer of FIB (i) certifying that attached to such certificate are true and correct copies of the Organizational Documents of FIB, together with such copies, and (ii) certifying that the execution, delivery and performance of the Security Agreement by the Borrower will not violate any law or agreement applicable to FIB.
(f) The projections and balance sheet described in Section 4.7 .
(gh) A signed copy of an opinion of counsel for the Borrower and FIB, each other Obligor addressed to the Administrative Agent and Agent, on behalf of the other Lender PartiesLenders, with respect to the matters contemplated by the Loan Documents.
(h) Evidence that, concurrent with the making of the Term Advances and the initial Revolving Borrowing, (i) all indebtedness, if any, outstanding under the Existing Wxxxx Fargo Credit Agreement, will be paid in full, and Wxxxx Fargo’s obligation to make advances or grant other financial accommodations under the Existing Wxxxx Fargo Credit Agreement will be terminated, (ii) the Borrower will have received not less than $90,000,000 in proceeds of Subordinated Debt and Trust Preferred Securities (of which not more than $20,000,000 shall be proceeds of Subordinated Debt other than Trust Preferred Securities), (iii) First Western Bancorp will accept the issuance of perpetual preferred stock of the Borrower having a liquidation preference of not less than $50,000,000 in partial payment of the purchase price with respect to the First Western Acquisition, (iv) all requisite approvals of any applicable Governmental Authority and the Directors and Shareholders of First Western Bancorp with respect to the First Western Acquisition have been obtained, and (v) the First Western Acquisition will be fully consummated.
(i) Evidence that the Borrower has expended not less than $45,000,000 of cash on hand to consummate the First Western Acquisition. In making such determination, the Borrower may include up to $20,000,000 of proceeds of the initial Revolving Borrowing but shall not include any other proceeds of the indebtedness arising hereunder or any proceeds of Subordinated Debt, Trust Preferred Securities or perpetual preferred stock.
(j) Payment of all fees and expenses then due and payable pursuant to Sections 2.10 2.11 and 9.6(a) hereof.
Appears in 1 contract
Conditions Precedent to the Initial Credit Extension. The Bank’s obligation of to make the Lenders to effect any initial Credit Extension is subject to the condition precedent that, on or before the day of the first Credit Extension, and in any event on or before March 10, 2008, the Administrative Agent following conditions precedent:
(a) Bank shall have received all financing statements required by Bank, duly authorized for filing by Borrower, and Bank shall have received searches reflecting the followingfiling of all such financing statements;
(b) Bank shall have received each of the following documents, each in form and substance satisfactory to the Required Lenders:
(a) Such Notes as Bank, duly executed, and each such document shall be requested by any Lenders, each properly executed on behalf of the Borrower.
(b) The Security Agreement, properly executed on behalf of the Borrower, together within full force and effect:
(i) Original stock certificates (or other applicable evidence of ownership) evidencing all issued and outstanding Capital Stock of FIB, together with stock powers executed in blank by the Borrower.
(ii) Financing statements with respect Control Agreement relating to the Borrower to be filed with the Secretary of State of Montana to perfect the Liens created by the Security Agreement, to the extent such Liens can be perfected by filing.
SVB Accounts (iii) Current searches of the UCC records of the Secretary of State of Montana and any other applicable records showing that no state or federal tax liens have been filed and remain in effect against the Borrower, and that no financing statements or other notifications or filings have been filed and remain in effect against the Borrower, other than those for which the Administrative Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1deposit accounts maintained at Bank).
(c) A Bank shall have received copies of Borrower’s governing documents, as amended, modified, or supplemented to the Closing Date;
(d) Bank shall have received a certificate of status with respect to Borrower, dated within 15 days of the secretary or other Closing Date, such certificate to be issued by the appropriate officer of the Borrower (i) certifying that the execution, delivery and performance jurisdiction of the Loan Documents and other documents contemplated hereunder have been duly approved by all necessary action organization of the Governing Board of the Borrower, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying which certificate shall indicate that attached to such certificate are true and correct copies of the Organizational Documents of the Borrower, together with such copies, and (iii) certifying the names of the officers of the Borrower that are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers. The Lender Parties may conclusively rely on such certificate until the Administrative Agent receives a further certificate of the Secretary or Assistant Secretary of the Borrower canceling or amending the prior certificate and submitting the signatures of the officers named is in good standing in such further certificate.
(d) Certificates of good standing for the Borrower from the Secretaries of State (or other appropriate officials) of Montana and South Dakota, dated not more than 30 days prior to the date hereof.jurisdiction;
(e) A certificate Bank shall have received certificates of status with respect to Borrower, each dated within 30 days of the secretary or other Closing Date, such certificates to be issued by the appropriate officer of FIB the jurisdictions (iother than the jurisdiction of organization of Borrower) certifying in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that attached to Borrower is in good standing in such certificate are true and correct copies of the Organizational Documents of FIB, together with such copies, and (ii) certifying that the execution, delivery and performance of the Security Agreement by the Borrower will not violate any law or agreement applicable to FIB.jurisdictions;
(f) The projections Bank shall have received an opinion of Borrower’s counsel in form and balance sheet described in Section 4.7 .substance reasonably satisfactory to Bank;
(g) A signed copy of an opinion of counsel for the Borrower Bank shall have completed its business, legal, and FIB, addressed to the Administrative Agent and the other Lender Parties, with respect to the matters contemplated by the Loan Documents.collateral due diligence;
(h) Evidence that, concurrent with the making representations and warranties in Section 5 must be materially true in all material respects on the date of the funding of the Term Advances Loan (except that representations and the initial Revolving Borrowing, (i) all indebtedness, if any, outstanding under the Existing Wxxxx Fargo Credit Agreement, will be paid warranties in full, and Wxxxx Fargo’s obligation to make advances or grant other financial accommodations under the Existing Wxxxx Fargo Credit Agreement will be terminated, (ii) the Borrower will have received not less than $90,000,000 in proceeds Section 5 made as of Subordinated Debt and Trust Preferred Securities (of which not more than $20,000,000 a specified earlier date shall be proceeds true in all material respects as of Subordinated Debt other than Trust Preferred Securities)such specified earlier date) and no Event of Default may have occurred and be continuing, (iii) First Western Bancorp will accept or result from the issuance of perpetual preferred stock funding of the Borrower having a liquidation preference of not less than $50,000,000 in partial payment of the purchase price with respect to the First Western Acquisition, (iv) all requisite approvals of any applicable Governmental Authority and the Directors and Shareholders of First Western Bancorp with respect to the First Western Acquisition have been obtained, and (v) the First Western Acquisition will be fully consummatedTerm Loan.
(i) Evidence Bank shall have received evidence that the Borrower SVB Accounts has expended not been opened with a balance of no less than $45,000,000 of cash on hand to consummate 43,750,000, which balance may be derived from the First Western Acquisition. In making such determination, the Borrower may include up to $20,000,000 of proceeds anticipated funding of the initial Revolving Borrowing but shall not include any other proceeds of the indebtedness arising hereunder or any proceeds of Subordinated Debt, Trust Preferred Securities or perpetual preferred stockTerm Loan.
(j) Payment of Borrower shall pay all fees Bank Expenses incurred in connection with the transactions evidenced by this Agreement; and
(k) all other documents and expenses then due legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and payable pursuant shall be in form and substance satisfactory to Sections 2.10 and 9.6(a) hereofBank.
Appears in 1 contract
Conditions Precedent to the Initial Credit Extension. The obligation of Lender to make the Lenders to effect any Initial Credit Extension hereunder is subject to the condition precedent thatfulfillment, on to the satisfaction of Lender (the making of such Initial Credit Extension by Lender being conclusively deemed to be its satisfaction or before the day waiver of the first following), of each of the following conditions precedent:
(a) Borrower shall have provided Lender with not less than forty-five (45) Business Days’ prior written notice of the Borrower’s intention to request the Initial Credit Extension, and in any event on or before March 10, 2008, the Administrative Agent ;
(b) Lender shall have received a Filing Authorization Letter, duly executed by Borrower, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the followingopinion of Lender, desirable to perfect the Lender’s Liens in and to the Collateral, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents (or, in the sole discretion of Lender, ratifications of such documents delivered in connection with the Existing Loan Agreement), in form and substance satisfactory to the Required Lenders:
(a) Such Notes as Lender, duly executed, and each such document shall be requested by any Lenders, each properly executed on behalf of the Borrower.
(b) The Security Agreement, properly executed on behalf of the Borrower, together within full force and effect:
(i) Original stock certificates (or other applicable evidence of ownership) evidencing all issued and outstanding Capital Stock of FIBthis Agreement, together with stock powers executed in blank by the Borrower.all schedules hereto,
(ii) Financing statements with respect to the Borrower to be filed with the Secretary of State of Montana to perfect the Liens created by the Security Agreement, to the extent such Liens can be perfected by filing.Cash Management Agreements,
(iii) Current searches the Control Agreements,
(iv) the Intellectual Property Security Agreement,
(v) the Disbursement Letter,
(vi) the Fee Letter,
(vii) the Officers’ Certificate,
(viii) the Securities Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank (or equivalent, in the UCC records case of any non-U.S. Subsidiary whose Stock is pledged); and
(ix) the Overstock Real Estate Joinder Documents,
(x) all Loan Documents not expressly referenced in (i) through (ix) above;
(d) Lender shall have received a certificate from the Secretary of State of Montana and any other applicable records showing that no state or federal tax liens have been filed and remain in effect against the Borrower, and that no financing statements or other notifications or filings have been filed and remain in effect against the Borrower, other than those for which the Administrative Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1.
(c) A certificate of the secretary or other appropriate officer of the Borrower (i) certifying that attesting to the resolutions of Borrower’s Board of Directors authorizing its execution, delivery delivery, and performance of this Agreement and the other Loan Documents and other documents contemplated hereunder have been duly approved by all necessary action of the Governing Board of the Borrower, and attaching true and correct copies of the applicable resolutions granting such approvalto which Borrower is a party, (ii) certifying that attached authorizing specific officers of Borrower to such certificate are true and correct copies of execute the Organizational Documents of the Borrower, together with such copiessame, and (iii) certifying attesting to the names incumbency and signatures of such specific officers of Borrower;
(e) Lender shall have received copies of Borrower’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Borrower;
(f) Lender shall have received a certificate of status with respect to Borrower, dated within 10 days of the officers Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction;
(g) Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that are authorized to sign the Loan Documents and other documents contemplated hereunderBorrower is in good standing in such jurisdictions;
(h) Lender shall have received a current certificate of insurance, together with the true signatures endorsements thereto, as are required by Section 6.8, the form and substance of such officers. The Lender Parties may conclusively rely on such certificate until the Administrative Agent receives a further certificate of the Secretary or Assistant Secretary of the Borrower canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate.which shall be satisfactory to Lender;
(d) Certificates of good standing for the Borrower from the Secretaries of State (or other appropriate officials) of Montana and South Dakota, dated not more than 30 days prior to the date hereof.
(e) A certificate of the secretary or other appropriate officer of FIB (i) certifying that attached to such certificate are true and correct copies Lender shall have received a ratification of the Organizational Documents of FIBIntercreditor Agreement with Xxxxx Fargo Bank, together with such copies, and (ii) certifying that the execution, delivery and performance of the Security Agreement by the Borrower will not violate any law or agreement applicable to FIB.National Association;
(fj) The projections and balance sheet described Lender shall have received Collateral Access Agreements (or, in Section 4.7 .
(gthe sole discretion of Lender, ratifications of such Collateral Access Agreements delivered in connection with the Existing Loan Agreement) A signed copy covering all locations required by Lender where any Inventory of an opinion of counsel for the Borrower and FIBis located including, addressed to the Administrative Agent and the other Lender Partiesbut not limited to, with respect to the matters contemplated following locations: (i) 0000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, XX 00000 (Xxxxx 000, Xxxxxx 000, 000 xxx 000), (xx) 0000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000, (iii) 000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, XX 00000, (iv) 0000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000, (v) 0000 Xxxxx 000 Xxxx, Xxxxx X0, Xxxx Xxxx Xxxx, Xxxx 00000 and (vi) 0000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000;
(k) Lender shall have received an opinion of Borrower’s counsel in form and substance satisfactory to Lender;
(l) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(m) Borrower shall have the Required Availability after giving effect to the Initial Credit Extension hereunder and the payment of all fees, costs and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents.;
(hn) Evidence thatLender shall have completed its business, concurrent with legal, and collateral due diligence, including, but not limited to (i) a collateral audit and review of Borrower’s and its Subsidiaries’ books and records and verification of Borrower’s representations and warranties to Lender, the making results of which shall be satisfactory to Lender, (ii) an inspection of each of the Term Advances locations where Borrower’s and its Subsidiaries’ Inventory is located, the initial Revolving Borrowingresults of which shall be satisfactory to Lender and (iii) a legal review of all fulfillment partner contracts or similar agreements and other contracts material to Borrower’s operation, the results of which shall be satisfactory to Lender (all such due diligence to be current as of the Closing Date);
(o) Lender shall have received Borrower’s projections of liquidity for the 12 month period immediately following the Closing Date, which projections are satisfactory to Lender in its sole discretion;
(p) Lender shall have received completed reference checks with respect to Borrower’s senior management, the results of which are satisfactory to Lender in its sole discretion;
(q) Lender shall have received a current appraisal of the Net Liquidation Value applicable to Borrower’s and its Subsidiaries’ Inventory, the results of which shall be satisfactory to Lender;
(r) Lender shall have received Uniform Commercial Code, tax lien, and litigation searches, the results of which shall be satisfactory to Lender;
(s) Lender shall have reviewed and shall be satisfied with all material agreements and customer contracts of Borrower, including fulfillment partner agreements;
(t) Lender shall have received Borrower’s Closing Date Business Plan, the results of which shall be satisfactory to Lender;
(u) Borrower shall have paid (i) all indebtedness, if any, outstanding under Lender Expenses incurred in connection with the Existing Wxxxx Fargo Credit Agreement, will be paid in full, transactions evidenced by this Agreement and Wxxxx Fargo’s obligation to make advances or grant other financial accommodations under the Existing Wxxxx Fargo Credit Agreement will be terminated, (ii) all fees then due under the Borrower will have received not less than $90,000,000 in proceeds of Subordinated Debt and Trust Preferred Securities (of which not more than $20,000,000 shall be proceeds of Subordinated Debt other than Trust Preferred Securities), (iii) First Western Bancorp will accept the issuance of perpetual preferred stock of the Borrower having a liquidation preference of not less than $50,000,000 in partial payment of the purchase price with respect to the First Western Acquisition, (iv) all requisite approvals of any applicable Governmental Authority and the Directors and Shareholders of First Western Bancorp with respect to the First Western Acquisition have been obtained, and Fee Letter;
(v) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the First Western Acquisition will be fully consummated.execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; and
(iw) Evidence 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 Lender. It is expressly acknowledged and agreed by Borrower that the Borrower has expended not less than $45,000,000 of cash on hand to consummate the First Western Acquisition. In making such determinationnot, the Borrower may include up to $20,000,000 of proceeds as of the initial Revolving Borrowing but shall not include any other proceeds date of this Agreement, requested the indebtedness arising hereunder or any proceeds of Subordinated Debt, Trust Preferred Securities or perpetual preferred stockInitial Credit Extension hereunder.
(j) Payment of all fees and expenses then due and payable pursuant to Sections 2.10 and 9.6(a) hereof.
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Conditions Precedent to the Initial Credit Extension. The obligation of the Lenders to effect any Credit Extension is subject to the condition precedent that, on or before the day of the first Credit Extension, and in any event on or before March 10, 2008the Closing Date, the Administrative Agent shall have received the following, each in form and substance satisfactory to the Required LendersAdministrative Agent:
(a) Such such Notes as shall be requested by any Lenders, each properly executed on behalf of the Borrower.;
(b) The the Guaranty, properly executed on behalf of the Guarantor;
(c) the Intercreditor Agreement, duly executed by the parties thereto;
(d) a Third Modification Agreement to Restated Mortgage and Security Agreement Mortgage Short-Term Redemption, properly executed on behalf of the Borrower;
(e) a First Amendment to Mortgage and Security Agreement, properly executed on behalf of the Borrower, together with:Guarantor;
(if) Original stock certificates (or other applicable evidence of ownership) evidencing all issued and outstanding Capital Stock insurance required by the terms of FIBthe Security Documents, including but not limited to flood insurance if the real estate described in any Mortgage is located within the 100-year flood plain, together with stock powers executed in blank by certificates and loss payable endorsements showing the Borrower.Administrative Agent, for the benefit of the Lender Parties, as mortgagee, additional insured and lender loss payee thereunder;
(iig) Financing statements with respect to the Borrower to be filed with the Secretary of State of Montana to perfect the Liens created by the Security Agreement, to the extent such Liens can be perfected by filing.
(iii) Current current searches of the UCC records appropriate filing offices in each jurisdiction in which each Obligor is organized, has an office or otherwise conducts business (including but not limited to patent and trademark offices, secretaries of the Secretary of State of Montana state and any other applicable records county recorders) showing that no state or federal tax liens have been filed and remain in effect against the Borrowerany Obligor, and that no financing statements or other notifications or filings have been filed and remain in effect against the Borrowerany Obligor, other than the Permitted Liens or those for which the Administrative Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1.satisfaction;
(ch) A certificate financing statements with respect to each Obligor to be filed in each jurisdiction that, in the opinion of the Administrative Agent, is reasonably necessary to maintain the Liens created by the Security Documents, to the extent such Liens can be perfected by filing;
(i) certificates of the secretary or other appropriate officer of the Borrower each Obligor (i) certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which such Obligor is a party have been duly approved by all necessary action of the Governing Board of the BorrowerObligor, and attaching true and correct copies of the applicable resolutions granting such approval, ; (ii) certifying that attached to such certificate certificates are true and correct copies of the Organizational Documents of the Borrowersuch Obligor, together with such copies, ; and (iii) certifying the names of the officers of the Borrower such Obligor that are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers. The ; the Lender Parties may conclusively rely on such certificate certificates until the Administrative Agent receives a further certificate of the Secretary or Assistant Secretary of the Borrower such Obligor canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate.;
(dj) Certificates a certificate of good standing for the Borrower each Obligor from the Secretaries Secretary of State (or other the appropriate officialsofficial) of Montana and South Dakotathe state of formation of such Obligor, dated not more than 30 days prior to the date hereof.Closing Date;
(ek) A certificate a Borrowing Base Certificate as of a date not more than 30 days prior to the Closing Date;
(l) the following financial information of the secretary or other appropriate officer of FIB Borrower and the Consolidated Group: (i) certifying that attached to such certificate are true consolidated and correct copies of consolidating financial statements for the Organizational Documents of FIBFiscal Years ending August 31, together with such copies2006 through August 31, 2008, audited by Xxxx Xxxxxx LLP, and interim financial statements for the most recent period completed, including balance sheets, income statements and cash flow statements prepared in conformity with GAAP; (ii) certifying that a 1-year (commencing September 1, 2009) business plan and pro-forma financial projections; and (iii) such other financial information as the execution, delivery and performance of the Security Agreement by the Borrower will not violate any law or agreement applicable to FIB.Administrative Agent may reasonably request;
(fm) The projections and balance sheet described in Section 4.7 .
(g) A a signed copy of an opinion of counsel for the Borrower and FIB, each Obligor addressed to the Administrative Agent and Agent, on behalf of the other Lender PartiesLenders, with respect to the matters contemplated by the Loan Documents.;
(h) Evidence that, concurrent with the making of the Term Advances and the initial Revolving Borrowing, (i) all indebtedness, if any, outstanding under the Existing Wxxxx Fargo Credit Agreement, will be paid in full, and Wxxxx Fargo’s obligation to make advances or grant other financial accommodations under the Existing Wxxxx Fargo Credit Agreement will be terminated, (iin) the Borrower will have received not less than $90,000,000 in proceeds absence of Subordinated Debt and Trust Preferred Securities (of which not more than $20,000,000 shall be proceeds of Subordinated Debt other than Trust Preferred Securities)any Material Adverse Effect, (iii) First Western Bancorp will accept the issuance of perpetual preferred stock of financial or otherwise, affecting the Borrower having a liquidation preference of not less than $50,000,000 in partial payment of or the purchase price with respect to the First Western AcquisitionConsolidated Group since August 31, (iv) all requisite approvals of any applicable Governmental Authority and the Directors and Shareholders of First Western Bancorp with respect to the First Western Acquisition have been obtained, and (v) the First Western Acquisition will be fully consummated.2008; and
(io) Evidence that the Borrower has expended not less than $45,000,000 of cash on hand to consummate the First Western Acquisition. In making such determination, the Borrower may include up to $20,000,000 of proceeds of the initial Revolving Borrowing but shall not include any other proceeds of the indebtedness arising hereunder or any proceeds of Subordinated Debt, Trust Preferred Securities or perpetual preferred stock.
(j) Payment payment of all fees and expenses then due and payable pursuant to Sections 2.10 2.14 and 9.6(a) hereof.
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