Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before July 31, 2002; (b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect: (i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent, (ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount, (iii) the Fee Letter, (iv) the Guaranty, (v) the Intercompany Subordination Agreement; (vi) the Intercreditor Agreement, (vii) the IP Security Agreement, (viii) the Mortgages and the Environmental Indemnities, (ix) the Representations & Warranties Certificate, (A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of 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 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 within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction; (k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions; (l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent; (m) [intentionally omitted] (n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses; (o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder; (q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent; (r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion; (s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors; (t) Agent shall have received Borrowers' Closing Date Business Plan; (u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect; (w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released; (x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group; (y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group; (z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;
Appears in 1 contract
Samples: Loan and Security Agreement (Riviera Holdings Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder)Loans, is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July May 31, 20022013;
(b) Agent Lender shall have lien searches (i) reflecting effective filed all financing statements perfecting Agent's Liens (which shall be first priorityand recorded, subject only filed and registered such other documents necessary for Lender to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed perfect Lender’s Lien in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements Collateral and shall cover any of the Collateral or property have received confirmation of such Restricted Subsidiaryfilings, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form recordings and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentregistrations;
(c) Agent Lender shall have received this Agreement and each of the following documentsFinancing Documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required and no Default or Event of Default shall exist as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order execution of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agentdocuments;
(d) Agent Lender shall have received the Closing Fee;
(e) Lender shall have received a certificate from the Secretary of each Borrower attesting to (i) the resolutions of such Borrower's ’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 Financing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary (ii) Borrower’s Governing Documents and (iii) incumbency of such Borrowerofficers;
(f) Agent Lender shall have received a certificate of status with respect to each Borrower, dated within 10 30 days of 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 Lender shall have received certificates the Budget, together with a combined balance sheet of status with respect to each Borrower, each dated within 30 days effective as of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) 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 Lender shall have received a certificate from the Secretary such opinion(s) of each Guarantor attesting Borrower’s counsel in form and substance satisfactory to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the sameLender as Lender may reasonably request;
(i) Agent Borrower shall have received copies all licenses, approvals, consents or evidence of each Guarantor's Governing Documents, as amended, modified, other actions required by any Person in connection with the execution and delivery by Borrower of this Agreement or supplemented to any other Financing Document or with the Closing Date, certified by consummation of the Secretary of such Guarantortransactions contemplated hereby and thereby;
(j) Agent Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received one or more certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.86.08, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mk) [intentionally omitted]
(n) Agent No action, suit, investigation, litigation or proceeding before any arbitrator or Tribunal that could reasonably be expected to have a Material Adverse Effect shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the be pending or threatened against Borrower's and Guarantors' Casino Licenses;
(ol) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(sm) Agent Borrower shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vn) Agent Lender shall have received (i) appraisals duly executed copies of the Real Property Collateral Warrant, in form and substance satisfactory to AgentLender;
(o) Lender shall have received duly executed copies of guaranties from each Guarantor, along with a pledge of securities from such Guarantors, in form and (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company substance satisfactory to Agent Lender;
(each a "Mortgage Policy" andp) Lender shall have received duly executed copies of the Subordination Agreement, collectively, the "Mortgage Policies") in amounts form and substance satisfactory to Agent assuring Agent that Lender; and
(q) All other documents and legal matters in connection with the Mortgages on such Real Property Collateral are valid transactions contemplated by this Agreement shall have been delivered, executed, or recorded and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31August 6, 20022003;
(b) Agent Lender shall have lien searches (i) reflecting effective received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements perfecting Agent's on Form UCC-1, duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender’s Liens (which shall be first priority, subject only in and to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens)Collateral, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentRevolving Credit Note,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountDisbursement Letter,
(iii) the Due Diligence Letter,
(iv) the Fee Letter,
(ivv) the Guarantor Security Agreement,
(vi) the Guaranty,
(vvii) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnitiesfor all parcels of Real Property Collateral,
(ix) the Representations & Warranties Officers’ Certificate,
(Ax) each the Stock Pledge AgreementAgreement and, and (B) except as otherwise provided with respect to the extent such shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b)are certificated, either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock stock powers with respect thereto endorsed in blank, or ,
(2xi) the written acknowledgmentTrademark Security Agreement (Trademarks and Trademark Applications), in form and
(xii) the Pay-Off Letter, together with UCC termination statements and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control other documentation evidencing the termination of the items described Liens of City National Bank in clause (1) above and holds, or is causing to be held, same for the benefit properties and assets of Agent;Parent.
(d) Agent Lender shall have received a certificate from the Secretary of each Borrower Parent attesting to the resolutions of such Borrower's Parent’s Board of Directors authorizing its the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower Parent is a party and authorizing specific officers of such Borrower Parent to execute the same;
(e) Agent Lender shall have received a certificate from the Secretary of ES Realty attesting to the resolutions of ES Realty’s Board of Directors authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which ES Realty is a party and authorizing specific officers of ES Realty to execute the same;
(f) Lender shall have received copies of each Borrower's ’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such each Borrower;
(fg) Agent Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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;
(hi) Agent Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board ’s board of Directors directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(ij) Agent Lender shall have received copies of each Guarantor's ’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(jk) Agent Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(kl) Agent Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(lm) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.86.7, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(m) [intentionally omitted]
(n) Agent Lender shall have received opinions a Collateral Access Agreement with respect to the following location: Parent’s headquarters located at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxx, California 91403;
(o) Lender shall have received an opinion of Borrowers' and Guarantors' Borrower’s counsel in form and substance reasonably satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(op) Agent Lender shall have received reasonably satisfactory evidence (including a certificate of the chief financial officer Vice President and Chief Financial Officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower and its Subsidiaries have been timely filed and all taxes upon Borrowers Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, gaming sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers Protest and Lender shall have be satisfied, in its Permitted Discretion, with the Required Availability after giving effect to the initial extensions contents and conclusions of credit hereunderBorrower’s Tax Lien Analysis;
(q) Agent Lender shall have completed its business business, legal, and legal Collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower’s and its Subsidiaries books and records and verification of Borrowers' Borrower’s representations and warranties to the Lender GroupLender, the results of which shall be reasonably satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(r) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower’s senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(s) Agent Lender shall have received evidence, satisfactory to Agent the consolidated balance sheet of Parent and its counselSubsidiaries, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices toprepared in accordance with GAAP, and taken all other necessary actions required bydated April 30, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors2003;
(t) Agent Lender shall have received Borrowers' Parent’s Closing Date Business Plan, together with a certificate of the Vice President and Chief Financial Officer of Parent certifying such Closing Date Business Plan as being such officer’s good faith best estimate of the financial performance of Parent during the period covered thereby;
(u) Borrowers Borrower shall pay have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent Lender shall have received received, for no fewer than 16 parcels of Eligible Real Property located in California (i) appraisals of the Real Property Collateral prepared in accordance with FIRREA and satisfactory to Agent, Lender and (ii) mortgagee mortgage title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent Lender (each a "“Mortgage Policy" ” and, collectively, the "“Mortgage Policies"”) in amounts satisfactory to Agent Lender assuring Agent Lender that the Mortgages on such Eligible Real Property Collateral are valid and enforceable first priority mortgage Liens on such Eligible Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respectLender;
(w) Agent Lender shall have received evidencereceived, for no fewer than 16 parcels of Eligible Real Property located in California, a Phase-I environmental report satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", Lender in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been releasedits sole discretion;
(x) Agent Lender shall have received copies of each of the material Senior Note DocumentsEnvironmental Risk Report and the Tax Lien Analysis, together with a Officer's Certificate by certificate of the Secretary of the Borrower Parent certifying each such document as being a true, correct, and complete copy thereof;
(y) Borrower and each of the Guarantors 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 or the same Guarantors of the Loan Documents or with the consummation of the transactions contemplated thereby; and
(z) 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 the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any extensions of credit provided for hereunder), hereunder is subject to the fulfillment, to the satisfaction of AgentAgent and each Lender, of each of the following conditions precedent set forth below:(the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):
(a) Agent shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the Closing Date shall occur on or before July 31opinion of Agent, 2002desirable to perfect the Trustee’s Liens in and to the Collateral;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agenta Transferee Letter from each such Lender,
(ii) a promissory note (in the form attached hereto Closing Certificate, certifying as Exhibit N-1) made by Borrower to the order of Agent (for the benefit accuracy and completeness, as of the Lender GroupClosing Date, of (A) in the original principal amount of Required Procedures, (B) the Maximum Revolver AmountApproved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the Fee Letterbenefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the GuarantyDisbursement Letter for the initial Advance,
(v) the Intercompany Subordination Agreement;Fee Letters,
(vi) the Intercreditor AgreementParent Guaranty,
(vii) the IP Security AgreementPerfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Mortgages and the Environmental Indemnities,Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Representations & Warranties Certificate,Loan Pricing Agreement.
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;
(dc) Agent shall have received a certificate from the Secretary an Authorized Person of each Borrower Loan Party (i) attesting to the resolutions of such Borrower's Person’s Board of Directors authorizing its the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower Person is a party and party, (ii) authorizing specific officers of such Borrower Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(ed) Agent shall have received copies of the Governing Documents of each Borrower's Governing DocumentsLoan Party, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borroweran Authorized Person;
(fe) Agent shall have received a certificate of status with respect to each BorrowerLoan Party, each dated within 10 days of 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;
(gf) Agent shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions each jurisdiction (other than the such Person’s jurisdiction of organization of such Borrowerorganization) in which its Borrower’s failure to be duly qualified or licensed would constitute cause a Material Adverse ChangeEffect, which certificates shall indicate that such Borrower is in good standing in such jurisdictionsother jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received a certificate from the Secretary an opinion of counsel to each Guarantor attesting Loan Party, in form and substance satisfactory to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the sameAgent;
(i) Agent shall have received copies of each Guarantor's Governing Documentsthe Approved Forms and Required Procedures, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel all in form and substance satisfactory to Agent, which opinions shall include opinions also be attached as exhibits to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesClosing Certificate;
(oj) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parentan Authorized Person) that all tax returns required to be filed by Borrowers each Loan Party have been timely filed and all taxes upon Borrowers any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, gaming sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(qk) Agent shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' books each of Borrower’s, Servicer’s, and records Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of Borrowers' each of Loan Party’s representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection audit of each of the FacilitiesBorrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(rl) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to Borrowers' senior managementthe Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxx Xxxx, Xxxx Xxxxxxxxx, and Xxxxx Xxxxx), the results of which are satisfactory to Agent in its sole discretion;
(sm) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(un) Borrowers Borrower shall pay have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(vo) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) appraisals a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the Real Property Collateral satisfactory DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to Agentdeliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) mortgagee title insurance policies (or marked commitments to issue that certain Assignment Agreement, dated as of the same) for date hereof, by and between Servicer and the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" andDZ Borrower, collectivelywhereby the DZ Borrower assigned, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liensconveyed, and transferred to Servicer, all of the Mortgage Policies otherwise DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent; it being understood that, in Agent (the event each Mortgage Policy is for the full amount approval of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights documents and benefits of the Lender Group in any material respect;
(wlegal matters under this Section 3.1(v) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate be evidenced by the Secretary initial Advance or initial issuance of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies Letter of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Credit hereunder).
Appears in 1 contract
Samples: Loan and Security Agreement (NewStar Financial, Inc.)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any initial credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31September 30, 20022010;
(b) Agent shall have lien received searches (i) reflecting effective the filing of all financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentDisbursement Letter,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,Collateral Assignment, and
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect a written authorization from NCB to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;terminate its UCC-1.
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's ’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 ’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 within 10 days of 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 within 30 10 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(lg) Agent shall have received a certificate of insurance, together with evidencing the endorsements thereto, as are insurance required by Section 6.86.9, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(nh) Agent shall have received opinions an opinion of Borrowers' Borrower’s counsel regarding the valid existence and Guarantors' counsel good standing of Borrower and the due authorization and execution of Loan Documents, in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(oi) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all material taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(qj) Agent shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower’s books and records and verification of Borrowers' Borrower’s representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilitieslocations where Inventory is located, the results of which shall be satisfactory to Agent;
(rk) Agent shall have received completed reference checks with respect to Borrowers' Borrower’s senior management, the results of which are satisfactory to Agent in its sole discretion;
(sl) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(xm) Agent shall have received copies of each of the material Senior Note Documentsoperating agreement and investment agreement between Borrower and Parent, together with a Officer's Certificate by certificate of the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof;
(n) Borrower shall have endorsed and delivered to Lender physical possession of all original Notes Receivables together with allonges thereto and copies of all recorded deeds of trust securing such Notes Receivable together with assignments thereof in recordable form;
(o) Borrower 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 this Agreement or any other Loan Document or with the same consummation of the transactions contemplated hereby and thereby; and
(p) 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 the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Unified Grocers, Inc.)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Third Restatement Closing Date shall occur on or before July 31March 29, 20022006;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall then be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,Fee Letter; and
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,Ratification Agreement; and
(iii) a consent under the Fee Letter,Intercreditor Agreement between Agent and the Term Loan Agent approving the transactions contemplated hereby and under the Term Loan Amendment.
(ivc) GE Capital shall have entered into an Assignment and Acceptance (the Guaranty,
“GE Capital Assignment”) with WFF (v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, duly acknowledged and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(bagreed by Borrower), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to AgentWFF, pursuant to which, prior to the effectiveness of a bailee reasonably acceptable this Agreement on the Third Restatement Closing Date, (i) GE Capital shall have sold and assigned to Agent that such bailee is in possession or control WFF, and WFF and shall have purchased and assumed from GE Capital, all the Existing Advances and Commitments of GE Capital under the items described in clause Existing Loan Agreement, and (1ii) above Borrower shall release GE Capital of all claims and holds, or is causing to be held, same for liabilities under the benefit of AgentLoan Documents;
(d) Immediately after effectiveness of the GE Capital Assignment, and prior to the effectiveness of this Agreement on the Third Restatement Effective Date, WFF shall have entered into an Assignment and Acceptance (the “WFF Assignment”) with Fortress, pursuant to which WFF shall have sold and assigned to Fortress, and Fortress shall have purchased and assumed from WFF, Commitments of WFF under the Existing Loan Agreement in an amount equal to $17,500,000, together with a pro rata share of the Existing Advances with respect thereto;
(e) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's ’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 shall have received copies of each Borrower's ’s Governing Documents, as amended, modified, or supplemented to the Third Restatement Closing Date, certified by the Secretary of such Borrower or a certificate from the Secretary of Borrower certifying that there have been no amendments or other modifications to Borrower’s Governing Documents since the Closing Date;
(fg) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Third Restatement 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 shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Third Restatement Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) 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;
(hi) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's ’s Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(ij) Agent shall have received copies of each Guarantor's ’s Governing Documents, as amended, modified, or supplemented to the Third Restatement Closing Date, certified by the Secretary of such Guarantor or a certificate from the Secretary of such Guarantor certifying that there have been no amendments or other modifications to such Borrower’s Governing Documents since last delivered to Agent and certified by the Secretary of such Guarantor;
(jk) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Third Restatement Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(kl) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Third Restatement Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictionsjurisdiction;
(lm) Agent shall have received a certificate an opinion of insurance, together with the endorsements thereto, as are required by Section 6.8, Obligors’ counsel substantially in the form of the opinion delivered on the Closing Date and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel otherwise in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(on) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower and its Subsidiaries have been timely filed and all taxes upon Borrowers Borrower, its Subsidiaries, or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(ro) Agent shall have received completed reference checks a certificate from the chief financial officer of Borrower with respect a copy of the Projections most recently delivered to Borrowers' senior managementthe Lenders prior to the Third Restatement Closing Date (which Projections shall include projections for the forthcoming 6 months, month by month) attached thereto and certifying that such Projections are still in effect and continue to represent Borrower’s good faith best estimate of the results of which are satisfactory to Agent in its sole discretionObligors’ future performance for the periods covered thereby;
(sp) Agent Borrower shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay paid all Lender Group Expenses incurred in connection with the transactions evidenced by this AgreementAgreement (it being understood that all outstanding Lender Group Expenses shall be charged to the Loan Account, which amounts shall constitute Existing Advances, immediately prior to the Third Restatement Closing Date);
(vq) The Lenders shall have received an updated appraisal of the STAC Value of the Stations, the results of which shall be satisfactory to the Lenders;
(r) Agent shall have received copies of an amendment to the Term Loan Agreement (i) appraisals of the Real Property Collateral satisfactory to Agent“Term Loan Amendment”), 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise which shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note DocumentsLenders, together with a Officer's Certificate by certificate of the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(ys) Agent shall have received copies of each satisfactory evidence that all of the FF&E Agreements, together with a Officer's Certificate conditions precedent to the effectiveness of the Term Loan Amendment have been (or concurrently are being) satisfied or waived by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender GroupTerm Loan Agent;
(zt) Agent Borrower shall have received requested an initial Advance on the Board Third Restatement Closing date in an amount equal to $10,000,000 plus accrued interest on, fees (including any prepayment fee) and expenses relating to the Term Loan to be used as a prepayment of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" the Term Loan in accordance with the provisions set forth Term Loan Amendment (the “Term Loan Prepayment Advance”); the parties hereto hereby agree that such Term Loan Prepayment Advance shall be used and applied for such prepayment of the Term Loan (and Agent and Lenders shall be satisfied that, concurrently with the effectiveness hereof on the Third Restatement Effective Date, such Term Loan Prepayment Advance is so used and applied as a prepayment of the Term Loan);
(u) Borrower 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 this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(v) The Lenders shall have received satisfactory evidence that Affiliation Agreements have been signed with The CW Television Network or MyNetworkTV on terms and conditions satisfactory to the Lenders; and
(w) no Material Adverse Change shall have occurred (as determined in the definition sole discretion of "Unrestricted Subsidiary" herein;Agent and each Lender).
Appears in 1 contract
Samples: Loan and Security Agreement (Acme Communications Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender (the making of such initial extension of credit by Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent:
(a) the Closing Date shall occur on or before July 31December 12, 20022005;
(b) Agent Lender shall have lien searches (i) reflecting effective received a Filing Authorization Letter, duly executed by Borrower, together with appropriate financing statements perfecting Agent's duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender’s Liens (which shall be first priority, subject only in and to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens)Collateral, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Cash Management Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Intellectual Property Security Agreement,
(iv) the Disbursement Letter,
(v) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,Officers’ Certificate, and
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Securities Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, blank (or (2) the written acknowledgmentequivalent, in form and substance satisfactory to Agent, the case of a bailee reasonably acceptable to Agent that such bailee any non-U.S. Subsidiary whose Stock is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agentpledged);
(d) Agent Lender shall have received a certificate from the Secretary of each Borrower (i) attesting to the resolutions of such Borrower's ’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 party, (ii) authorizing specific officers of such Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Borrower;
(e) Agent Lender shall have received copies of each Borrower's ’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mi) [intentionally omitted]Lender shall have entered into a satisfactory Intercreditor Agreement with Xxxxx Fargo Bank, National Association;
(nj) Agent Lender shall have received opinions Collateral Access Agreements with respect to the following locations: (i) 0000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, XX 00000 (Suite 100, Suites 200,300 and 400, Suite 500 and Suite 600), (ii) 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 Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx, 00000, (vi) 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and (vii) 0000 Xxxxx 000 Xxxx, Xxxxx X0, Xxxx Xxxx Xxxx, Xxxx 00000;
(k) Lender shall have received an opinion of Borrowers' and Guarantors' Borrower’s counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(ol) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower and its Subsidiaries have been timely filed and all taxes upon Borrowers Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, gaming sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pm) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunderhereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents;
(qn) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower’s and its Subsidiaries’ books and records and verification of Borrowers' Borrower’s representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the Facilitieslocations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be satisfactory to AgentLender;
(ro) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower’s senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(sp) Agent Lender shall have received evidencean appraisal of the Net Liquidation Value applicable to Borrower’s and its Subsidiaries’ Inventory, the results of which shall be satisfactory to Agent and its counsel, that, except as contemplated Lender;
(q) A takeover audit shall have been conducted by Section 3.3(b) hereofor on behalf of Lender, the Borrowers and Guarantors results of which shall be reasonably satisfactory to Lender;
(r) Lender shall have made all necessary registrations withreceived Uniform Commercial Code, obtained all necessary consents or approvals of, given all necessary notices totax lien, and taken litigation searches, the results of which shall be satisfactory to Lender;
(s) Lender shall have reviewed and shall be satisfied with all other necessary actions required bymaterial agreements and customer contracts of Borrower, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantorsincluding fulfillment partner agreements;
(t) Agent Lender shall have received Borrowers' satisfactorily reconciled Borrower’s projected cash flow statement for 2006 which shall be consistent with the Borrower’s Closing Date Business Plan;
(u) Borrowers Lender shall pay have received Borrower’s Closing Date Business Plan, the results of which shall be satisfactory to Lender;
(v) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vw) Agent Borrower and each of its Subsidiaries shall have received (i) appraisals all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Real Property Collateral satisfactory to AgentLoan Documents or with the consummation of the transactions contemplated thereby; and
(x) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make an Advance on the initial Advance (or otherwise to extend any credit provided for hereunder), occasion of the Initial Extension of Credit hereunder is subject to the fulfillment, to the satisfaction of Agent, the following conditions precedent before or concurrently with the Initial Extension of each Credit and this Agreement shall become effective on and as of the date hereof (the “Closing Date”) when all such conditions precedent set forth belowshall have been satisfied:
(a) The majority of the Closing Date shall occur on or before July 31, 2002;
(b) Agent Term C Lenders shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only consented to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), Refinancing and (ii) listing all any other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date transactions contemplated under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of 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;Documents.
(eb) The Administrative Agent shall have received copies be reasonably satisfied with the corporate and legal structure and capitalization of each Borrower's Governing DocumentsLoan Party, as amendedincluding the terms and conditions of the charter, modifiedbylaws and each class of capital stock of each Loan Party and of each agreement or instrument relating to such structure or capitalization.
(c) The Administrative Agent shall be reasonably satisfied that all Debt of the U.S. Borrower and its Restricted Subsidiaries outstanding immediately before giving effect to the Refinancing, other than the Debt (the “Surviving Debt”) identified on Schedule 3.01(c), has been prepaid, redeemed or supplemented defeased in full or otherwise satisfied and extinguished and that all such Debt on Schedule 3.01(c) shall be on terms and conditions reasonably satisfactory to the Administrative Agent.
(d) On the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received Leverage Ratio, determined on a certificate of status with respect to each Borrower, dated within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability pro forma basis after giving effect to the initial extensions of credit hereunder;Refinancing and any other transactions contemplated under the Loan Documents, shall not exceed 7.00:1.
(qe) Agent Before giving effect to the Refinancing and the other transactions contemplated by this Agreement, there shall have completed occurred no material adverse change in the business, financial condition, operations, assets, liabilities or prospects of any Loan Party or any of its business and legal due diligenceSubsidiaries since December 31, including 2002.
(f) There shall have occurred no material adverse change in loan syndication, financial or capital market conditions generally that has impaired or could reasonably be expected to impair syndication of the Facilities.
(g) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be likely to have a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and Material Adverse Effect or (ii) an inspection purports to affect the legality, validity or enforceability of each this Agreement, any Note, any other Loan Documents, any Related Document or the consummation of the Facilitiestransactions contemplated hereby.
(h) Nothing shall have come to the attention of the Lender Parties to lead them to believe (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect or (ii) that, following the consummation of the Refinancing, either Borrower or its Subsidiaries would not have good and marketable title to all material assets of such Borrower and such Subsidiaries reflected in the Information Memorandum; without limiting the generality of the foregoing, the results Lender Parties shall have been given such access to the management, records, books of which account, contracts and properties of the Borrowers and their respective Restricted Subsidiaries as they shall have reasonably requested.
(i) All governmental and third party consents and approvals necessary in connection with the Refinancing, the Loan Documents and the Related Documents and the transactions contemplated thereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be satisfactory to Agent;applicable in the reasonable judgment of the Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the Loan Documents and the Related Documents and the transactions contemplated thereby.
(rj) The Administrative Agent shall have received completed reference checks with respect the fees referred to Borrowers' senior managementin Section 2.08(c) to be received on the Closing Date, and each Lead Arranger shall have received fees under a separate letter agreement, dated May 21, 2003, between the results of which are satisfactory to Agent in its sole discretion;U.S. Borrower and such Lead Arranger.
(sk) The Administrative Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, on or before the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required byday of the Initial Extension of Credit the following, each applicable Gaming Authority relative to the executiondated such day (unless otherwise specified), delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Group;Party:
(yi) Agent shall have received The Notes (other than the Term C Notes) payable to the order of the Lenders (other than the Term C Lenders).
(ii) Certified copies of each the resolutions of the FF&E AgreementsBoard of Directors of each Borrower and each other Loan Party approving each Loan Document to which it is or is to be a party and the transactions contemplated thereby, together and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Refinancing, this Agreement, the Notes and each other Loan Document.
(iii) A copy of a Officer's Certificate by certificate of the Secretary of State of the jurisdiction of its incorporation, or in the case of the Canadian Borrower, the Ministry of Consumer and Commercial Relations of the Province of Ontario (the “Ontario Ministry”), dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower’s or such other Loan Party’s charter on file in his office, (B) each such document Borrower and each such other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State or Province of the jurisdiction of its incorporation.
(iv) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or in the case of Accuride Erie by a duly authorized officer of the sole member of its general partner), dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as being of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter of such Borrower or such other Loan Party since the date of the certificate referred to in Section 3.01(k)(iii), (B) a truetrue and correct copy of the bylaws of such Borrower and such other Loan Party as in effect on the date of the Initial Extension of Credit, correct(C) the absence of any proceeding for the dissolution or liquidation of such Borrower or such other Loan Party, (D) the truth and complete copy thereofaccuracy of the representations and warranties contained in the Loan Documents in all material respects as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(v) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower and such other Loan Party authorized to sign this Agreement, the Notes and each other Loan Document to which they are or are to be parties and the same shall other documents to be in form delivered hereunder and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;thereunder.
Appears in 1 contract
Samples: Credit Agreement (Accuride Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31February 23, 20022001;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing duly executed by Agent, to have priority over Agent's Liens)Borrower, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentFee Letter,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountMortgages,
(iii) the Fee LetterSubordination of Mortgage,
(iv) the GuarantySurvey Affidavit/Indemnification,
(v) the Intercompany Subordination Agreement;Officers' Certificate,
(vi) the Intercreditor Trademark Security Agreement,
(vii) the IP Security AgreementXxxxxxx Xx Ship Mortgage,
(viii) the Mortgages and the Environmental Indemnities,Subordination of Preferred Fleet Mortgage, and
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Intercreditor Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;.
(d) Agent Lender 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 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 Borrower to execute the same;
(e) Agent Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mi) [intentionally omitted]
(n) Agent Lender shall have received opinions an opinion of Borrowers' and Guarantors' counsel Borrower's counsel, in form and substance satisfactory to AgentLender in its Permitted Discretion, which opinions shall such opinion to include opinions an opinion as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Gaming Licenses;
(oj) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pk) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records and verification of Borrowers' Borrower's representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the Facilitieslocations where Inventory is located, the results of which shall be satisfactory to AgentLender;
(rl) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretionPermitted Discretion;
(sm) Agent Lender shall have received evidencefrom an independent third party professional selected by Lender, an evaluation of the enterprise value of Borrower's Ice Harbor Facility, the results of which shall be satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the GuarantorsLender;
(tn) Agent Lender shall have received Borrowers' Borrower's Closing Date Business Plan;
(uo) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vp) Agent Lender shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent Lender (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts reasonably satisfactory to Agent Lender assuring Agent that Lender that, after giving effect to the Intercreditor Agreement, the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respectLender;
(wq) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent Lender shall have received copies of each of the material Senior Note Documentsfollowing documents, together with a Officer's Certificate by certificate of the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof: (i) the Senior Note Documents, (ii) the Operating Agreement, (iii) the Lease, (iv) the Ice Harbor Parking Agreement, (v) the Consulting Agreements, and (vi) the same Certificate of Designation;
(r) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority, including the Gaming Commission, in connection with the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(s) the Xxxxxxx Xx Ship Mortgage shall have been recorded in the applicable filing office of the United States Coast Guard and such other governmental agency as shall be necessary, and Lender shall have received confirmation, satisfactory to Lender, of such recordation;
(t) 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 the Lender Group;Lender; and
(yu) Agent Borrower shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory Required Availability after giving effect to the Lender Group;
(z) Agent shall have received the Board initial extensions of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;credit hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Peninsula Gaming Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31December 14, 20022001;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing duly executed by Agent, to have priority over Agent's Liens)Borrower, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of including the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentPledge Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountIntellectual Property Security Agreement,
(iii) the Disbursement Letter,
(iv) the Due Diligence Letter,
(v) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Master Assignment Agreement,
(vii) the IP Security AgreementOfficers' Certificate,
(viii) such documentation evidencing the Mortgages and assignments under the Environmental IndemnitiesMaster Assignment Agreement as are requested by Lender,
(ix) the Representations & Warranties Certificate,Security Agreement, and
(Ax) each Stock Pledge Agreement, and (B) except a Borrowing Base Certificate dated as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentClosing Date;
(d) Agent 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 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 Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 ten (10) days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 jurisdictionsjurisdictions and which certificates (i) from the States of Louisiana and Alabama shall be dated within thirty (30) days of the Closing Date and (ii) from all other states shall be dated on or after September 15, 2001;
(h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days insurance and a copy of the Closing Date, such certificate to be of insurance issued by the appropriate officer in favor of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insuranceCollateral Agent, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Lender;
(i) Lender shall have received satisfactory evidence that Hibernia has delivered its notice of resignation as Collateral Agent;
(mj) [intentionally omitted]
(n) Agent Lender shall have received opinions an opinion of Borrowers' and Guarantors' Borrower's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(ok) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pl) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(qm) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records and verification of Borrowers' Borrower's representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each satisfactory review by Lender of the FacilitiesIntercreditor Agreement, the results of which shall be satisfactory to AgentIndenture Documents and the Hibernia Term Loan Agreement;
(rn) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(so) Agent Lender shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance appraisals of the Loan Documents by the Borrowers Enterprise Valuation and the GuarantorsQuick Sale Valuation (including Borrower's corporate headquarters and Baton Rouge, Louisiana locations) acceptable to Lender;
(tp) Agent Lender shall have received Borrowers' Borrower's Closing Date Business Plan;
(uq) Borrowers Borrower shall pay have paid all fees that are required to be paid on the Closing Date pursuant to the terms of the Fee Letter, plus all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vr) Agent To the extent requested by Lender, Lender shall have received (i) appraisals of a phase 1 environmental report and a real estate survey with respect to each parcel composing the Real Property Collateral satisfactory to Agent, Collateral; the environmental consultants and (ii) mortgagee title insurance policies (surveyors retained for such reports or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" and, collectivelysurveys, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that scope of the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liensreports or surveys, and the Mortgage Policies otherwise results thereof shall be in form and substance satisfactory acceptable to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respectLender;
(ws) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent Lender shall have received copies of each of the material Senior Note DocumentsBorrower's Material Contracts, together with a Officer's Certificate by certificate of the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof;
(t) Borrower 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 this Agreement or any other Loan Document or with the same consummation of the transactions contemplated hereby and thereby; and
(u) Lender shall have received the unqualified annual audited financial statements of Borrower prepared by Ernst & Young (without explanatory paragraphs) and such financial statements shall be satisfactory to Lender;
(v) 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 the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31January 10, 2002;
(b) Agent shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing required by Agent, to have priority over Agent's Liens)duly executed or authorized by Borrower, and (ii) listing Agent shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountDisbursement Letter,
(iii) the Due Diligence Letter,
(iv) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;Guaranties,
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or ,
(2vii) the written acknowledgmentTrademark Security Agreement,
(viii) the Cash Management Agreements,
(ix) the License Agreement,
(x) the Officers' Certificate,
(xi) the Non-Offset Agreement, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of and
(xii) the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;Intercreditor Agreement.
(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 within 10 days of 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 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 such Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse ChangeNew Jersey, Minnesota, Indiana, and West Virginia, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]Agent shall have received Collateral Access Agreements with respect to the following locations: 000 Xxxxx Xxxxxxxxx Xxxxxxxxx, 19th Floor, El Segundo, California 90245; and 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000;
(n) Agent shall have received opinions an opinion of Borrowers' Borrower's and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Borrower's Closing Date Business Plan;
(ur) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(s) Borrower 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 this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(t) Agent shall have received evidence that Accounts owed by any Affiliate of IBM Corporation not subject to the Non-Offset Agreement are not subject to any setoff rights afforded to such Account Debtors;
(u) Agent shall have received evidence that Borrower has been released of all obligations owing under any Investments in its Affiliates;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, and (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company evidence satisfactory to Agent that IBMCC has amended any financing statements against the Borrower or any Guarantor to reflect that its interests are subject to the Intercreditor Agreement;
(each a "Mortgage Policy" and, collectively, w) the "Mortgage Policies") IBMCC Agreement shall be in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid full force and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Lienseffect, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;and
(x) Agent all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have received copies of each of the material Senior Note Documentsbeen delivered, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a trueexecuted, correct, or recorded and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (En Pointe Technologies Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31September 4, 2002;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing duly authorized by Agent, to have priority over Agent's Liens)Borrower, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Cash Management Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Copyright Security Agreement,
(iv) the Disbursement Letter,
(v) the Due Diligence Letter,
(vi) the Fee Letter,
(ivvii) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental IndemnitiesGuarantor Security Agreement,
(ix) the Representations & Warranties Intercompany Subordination Agreement,
(x) the Officers’ Certificate,
(Axi) each Stock the Patent Security Agreement,
(xii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower,
(xiii) the Securities Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or and the Pledged Notes,
(2xiv) the written acknowledgmentTrademark Security Agreement,
(xv) the MCI Agreement, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of and
(xvi) the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentPNC Forbearance;
(d) Agent Lender shall have received a certificate from the Secretary of each Borrower (i) attesting to the resolutions of such Borrower's ’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 samesame and (ii) certifying the names and true signatures of the officers of Borrower authorized to sign each such Loan Document;
(e) Agent Lender shall have received copies of each Borrower's ’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 Lender shall have received a certificate from the Secretary of each Guarantor (i) attesting to the resolutions of such Guarantor's Board ’s board of Directors directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the samesame and (ii) certifying the names and true signatures of the officers of such Guarantor authorized to sign each such Loan Document;
(i) Agent Lender shall have received copies of each Guarantor's ’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(m) [intentionally omitted]Lender shall have received a Collateral Access Agreement with respect to the following location: 10 Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000;
(n) Agent Lender shall have received opinions an opinion of Borrowers' and Guarantors' Borrower’s counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(o) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower’s books and records and verification of Borrowers' Borrower’s representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilitieslocations where Borrower’s Inventory is located, and (iii) review of Borrower’s customer contracts, the results of each of which shall be satisfactory to AgentLender;
(r) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower’s senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(s) Agent Lender shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Borrower’s Closing Date Business Plan;
(ut) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vu) Agent Borrower 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 this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(v) Lender shall have received Borrower’s quarterly report on Form 10-Q as filed with the SEC for the period ended June 30, 2002, and such report shall be consistent with the pro forma quarterly report Borrower previously provided to Lender, except for such adjustments as have been previously disclosed to Lender;
(w) Lender shall be satisfied with the takeover audit, which shall include but shall not be limited to: (i) appraisals a review of outstanding check detail, in particular the Real Property Collateral satisfactory to Agentdetermination of any held checks, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent verification that the Mortgages on such Real Property Collateral payroll taxes are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been releasedcurrent;
(x) Agent Borrower shall have received copies on the Closing Date remitted by wire transfer to Lender’s Account all cash (and delivered all Cash Equivalents in such manner as directed by Lender) of each Borrower utilized to calculate the Required Availability;
(y) Borrower shall have delivered to Lender evidence, satisfactory to Lender in its sole discretion, that Borrower provided notice to AT&T Corp. in connection with the agreement dated as of August 1, 2000, as amended, between Borrower and AT&T Corp;
(z) Borrower shall have on the material Senior Note DocumentsClosing Date requested and borrowed an Advance in an amount equal to at least $5,000,000; and
(aa) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a trueexecuted, correct, or recorded and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance Term Loans (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31March 11, 2002;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing duly executed by Agent, to have priority over Agent's Liens)Borrower, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Account Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountCopyright Security Agreement,
(iii) the Disbursement Letter,
(iv) the Due Diligence Letter,
(v) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor AgreementOfficers' Certificate,
(vii) the IP Patent Security Agreement,
(viii) the Mortgages Pay-Off Letter, including an agreement to prepare and file UCC termination statements, mortgage releases and other documentation evidencing the Environmental Indemnitiestermination by Existing Lender of its Liens in and to the properties and assets of Borrower upon receipt of the pay-off funds,
(ix) the Representations & Warranties Certificate,Trademark Security Agreement, and
(Ax) each Stock Pledge Agreement, and (B) except as otherwise provided the Mortgage with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentAtlanta Property;
(d) Agent 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 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 Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mi) [intentionally omitted]Lender shall have received Collateral Access Agreements with respect to the following locations: (1) 6660 Dixie Highway, Suite 304, Fairfield, OH; (2) Inverness 44, 40 Xxxxxxxxx Xxxxxx Parkway, Birmingham, AL; (3) 25 16th Street, Xxxxxxxxx, Xxxxxxxxx, XX; xxx (0) 000 Xxxx France Xxxx., Xxxxxxx Xxxxx, XX;
(nx) Agent shall Xxxxxx xxxxx have received opinions of Borrowers' and Guarantors' Borrower's counsel (including opinions relating to the Mortgage with respect to the Atlanta Property) in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(ok) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower, certifying as to the best of his knowledge) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are set forth on Schedule A to such certificate or that are the subject of a Permitted Protest;
(pl) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunderAvailability;
(qm) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records and verification of Borrowers' Borrower's representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(rn) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(so) Agent Lender shall have received evidencean appraisal of Borrower's Recurring Service & Maintenance Revenues, the results of which shall be satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the GuarantorsLender;
(tp) Agent Lender shall have received Borrowers' Borrower's Closing Date Business Plan;
(uq) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(r) 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, Lender, or any of their Affiliates;
(s) Borrower, at its own cost and expense, shall have filed applications and taken any and all other actions reasonably necessary to register all material Copyrights (including, without limitation, Borrower's top ten (10) Copyrights measured by annual revenue generated therefrom and all other Copyrights which generate or are reasonably expected to generate at least $2,000,000 in annual revenue), in good faith in accordance with the procedures and regulations of the U.S. Copyright Office;
(t) Lender shall have received from Borrower certificates of registration from the U.S. Copyright Office, or such other evidence of registration satisfactory to Lender, to demonstrate compliance with Section 3.1(s);
(u) Borrower 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 this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(v) Agent Lender shall have received, to its satisfaction, true and complete copies of each of the NDC Agreements (which agreements have not been amended since the dates thereof);
(w) Lender shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, and (ii) a mortgagee title insurance policies policy (or marked commitments to issue the same) (the "Mortgage Policy") for the Real Atlanta Property Collateral issued by a title insurance company satisfactory to Agent Lender (each a "Mortgage Policy" and, collectively, the "Mortgage PoliciesTitle Company") in amounts an amount satisfactory to Agent Lender assuring Agent Lender that the Mortgages Mortgage on such Real Property Collateral are is a valid and enforceable first priority mortgage Liens Lien on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies Policy otherwise shall be in form and substance satisfactory to AgentLender; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) an as-built survey of recent date with respect to the 13% First Mortgage Notes due 2002 of BorrowerAtlanta Property, have been repaidshowing such matters as may be required by Lender, or satisfactorily "legally-defeased"certified to the Title Company, in full from and the proceeds surveyors retained for such survey, the scope of the Notes survey, and the results thereof shall be acceptable to Lender; and (as such term iii) copies of permanent and unconditional certificates of occupancy (or, if it is defined not the practice to issue certificates of occupancy in the Indenturejurisdiction in which the facilities to be covered by the Mortgage are located, then such other evidence reasonably satisfactory to Lender) permitting the fully functioning operation and that occupancy of each such facility and of such other permits necessary for the use and operation of each such facility issued by the respective governmental authorities having jurisdiction over each such facility. In addition, Borrower shall have paid to the Title Company all liens expenses and premiums of the Title Company in respect thereof connection with the issuance of the Mortgage Policy and in addition shall have been released;paid to the Title Company an amount equal to the recording and stamp taxes payable in connection with recording the Mortgage in the appropriate county land offices; and Borrower shall have paid to the surveyors all fees and expenses of the surveyors in connection with the survey; and
(x) Agent all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have received copies of each of the material Senior Note Documentsbeen delivered, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a trueexecuted, correct, or recorded and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Subsidiary Borrower Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July December 31, 20022000;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing duly executed by Agent, to have priority over Agent's Liens)Subsidiary Borrower, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent[intentionally omitted],
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountDisbursement Letter,
(iii) the Fee LetterCash Management Agreements,
(iv) the GuarantyPayoff Letter,
(v) the Intercompany Subordination Agreement;UK Debenture, together with all certificates representing the shares of Subsidiary Borrower pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and other deeds and documents of title required to be deposited thereunder,
(vi) the Intercreditor AgreementUK Guaranty,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each UK Stock Pledge Agreement, and Agreement (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(bParent), either (1) together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or ,
(2viii) the written acknowledgmentCanadian Security Documents, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of and
(ix) the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentSecurity Agreement;
(d) Agent [intentionally omitted];
(e) Lender shall have received a certificate from the Secretary of each of Subsidiary Borrower and UK Holding Company attesting to the resolutions of such Borrower's the Board of Directors of each of Subsidiary Borrower and UK Holding Company authorizing its their respective execution, delivery, and performance of this Agreement and the other Subsidiary Loan Documents to which such Borrower each is a party and authorizing specific officers of such Borrower each to execute the same, and amending their respective articles of association to disapply any rights of lien, pre-emption rights, or any rights of veto on the transfer of any shares which are the subject of any security granted pursuant to any of the Loan Documents or Subsidiary Loan Documents or enforcement of such security or where the transfer is made at the direction of Lender or a receiver;
(ef) Agent Lender shall have received copies of each Subsidiary Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Subsidiary Borrower;
(fg) Agent Lender shall have received a certificate of status with respect to each Subsidiary Borrower, dated within 10 30 days of the Closing Date, such certificate to be issued by the appropriate officer registrar of the jurisdiction of organization of such Borrowercompanies, which certificate shall indicate that such Subsidiary Borrower is in good standing in such jurisdiction;
(gh) Agent Lender shall have received certificates of status with respect to each Subsidiary 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 such Subsidiary Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Subsidiary Borrower is in good standing in such jurisdictions;
(hi) Agent Lender shall have received copies of UK Holding Company's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of UK Holding Company;
(j) Lender shall have received a certificate of status with respect to UK Holding Company, dated within 30 days of the Closing Date, such certificate to be issued by the registrar of companies, which certificate shall indicate that UK Holding Company is in good standing in such jurisdiction;
(k) Lender shall have received certificates of status with respect to UK Holding Company, 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 UK Holding Company) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that UK Holding Company is in good standing in such jurisdictions;
(l) Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of each of the Subsidiary Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(im) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent Lender shall have received a certificate from the Secretary of status with respect Parent certifying that there have been no amendments, restatements, supplements, or modifications to each Guarantor, dated within 10 days the Governing Documents of any of the Borrowers since the "Closing Date, such certificate to be issued by " (as defined in the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdictionParent Loan Agreement);
(kn) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mo) [intentionally omitted]Lender shall have received such Collateral Access Agreements with respect to such of Subsidiary Borrower's facilities as Lender may require;
(np) Agent Lender shall have received opinions of Borrowers' and Guarantors' Subsidiary Borrower's counsel (and, in Lender's sole discretion, Lender's foreign counsel) in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(oq) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer a director of ParentSubsidiary Borrower) that all tax returns required to be filed by Borrowers Subsidiary Borrower have been timely filed and all taxes upon Borrowers Subsidiary Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pr) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Subsidiary Borrower's books and records and verification of Borrowers' Subsidiary Borrower's representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the Facilitieslocations where Inventory is located, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretionLender;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers Subsidiary Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vt) Agent Subsidiary Borrower shall have received (i) appraisals all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Subsidiary Borrower of this Agreement or any other Subsidiary Loan Document or with the consummation of the Real Property Collateral satisfactory to Agenttransactions contemplated hereby and thereby; and
(u) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Samples: Loan Agreement (Futurelink Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Restatement Closing Date shall occur on or before July 31August 11, 20022003;
(b) Agent shall have lien received all UCC searches (i) reflecting effective and financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing required by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices Agent with respect to such Borrower or any such Restricted Subsidiarythe Janesville-Madison Station, none of which financing statements shall cover any of and the Collateral or property results of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance searches shall be satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as Collateral Assignment of the Closing Date Key Lease with respect to the Janesville-Madison Station, together with an appropriate consent to hypothecation from the lessor under Sections 4.7 and 7.19 hereof such Key Lease (to be executed and delivered to Agentthe extent any such consent is required thereby),
(ii) a promissory note (in Collateral Assignment of the form attached hereto as Exhibit N-1) made by Borrower Tower Lease with respect to the order of Agent Janesville-Madison Station, together with an appropriate consent to hypothecation from the lessor under such Tower Lease (for to the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amountextent any such consent is required thereby),
(iii) the Control Agreements with respect to the Janesville-Madison Station,
(iv) the Equipment Financing Letter Agreement,
(v) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Guarantor Security Agreement,
(vii) the IP Security AgreementGuaranty,
(viii) the Mortgages and the Environmental IndemnitiesIntercompany Subordination Agreement,
(ix) modifications of the Representations & Warranties Certificate,
(A) each Stock Pledge AgreementMortgages, the Collateral Assignments of Key Leases, and (B) except as otherwise provided with respect to shares the Collateral Assignments of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgmentTower Leases, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control reflecting the amendment and restatement of the items described Existing Loan Agreement and the increase in clause the Maximum Revolver Amount, and confirmation of recordation in all applicable jurisdictions of such modifications,
(1x) above and holdsthe Pledge Agreement, or is causing together with all certificates representing the certificated shares of Stock pledged thereunder that were not delivered on the Closing Date, as well as Stock powers with respect to be held, same for the benefit of Agentsuch certificated shares endorsed in blank;
(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 Restatement Closing Date, certified by the Secretary of such Borrower or a certificate from the Secretary of Borrower certifying that there have been no amendments or other modifications to Borrower's Governing Documents since the Closing Date;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Restatement 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 within 30 days of the Restatement Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Restatement Closing Date, certified by the Secretary of such GuarantorGuarantor or a certificate from the Secretary of such Guarantor certifying that there have been no amendments or other modifications to such Borrower's Governing Documents since the Closing Date;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Restatement Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Restatement Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictionsjurisdiction;
(l) Agent shall have received a certificate (i) an opinion of insurance, together with Obligors' counsel substantially in the endorsements thereto, as are required by Section 6.8, form of the opinion delivered on the Closing Date and otherwise in form and substance satisfactory to Agent and (including amountsii) an opinion of which shall be Obligors' special communications counsel with respect to the Janesville-Madison Station, substantially in the form of the opinion delivered on the Closing Date and otherwise in form and substance satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower and its Subsidiaries have been timely filed and all taxes upon Borrowers Borrower, its Subsidiaries, or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pn) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit credit, if any, hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(ro) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Borrower's Restatement Closing Date Business Plan;
(up) Borrowers Borrower shall pay have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(xq) Agent shall have received copies of each of LMA, Key Lease, Tower Lease, and Affiliation Agreement with respect to the material Senior Note DocumentsJanesville-Madison Station, together with a Officer's Certificate by certificate of the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(yr) Agent shall have received copies of each a title insurance date down 1B endorsement on existing title insurance policies for the Real Property Collateral issued by Chicago Title or another title insurance company satisfactory to Agent reflecting the amendment and restatement of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, Existing Loan Agreement and the same shall be increase in form and substance reasonably satisfactory to the Lender Group;Maximum Revolver Amount; and
(zs) Agent Borrower shall have received the Board all licenses, approvals or evidence of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" other actions required by any Governmental Authority in accordance connection with the provisions set forth in execution and delivery by Borrower of this Agreement or any other Loan Document or with the definition consummation of "Unrestricted Subsidiary" herein;the transactions contemplated hereby and thereby.
Appears in 1 contract
Samples: Loan and Security Agreement (Acme Communications Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance or L/C Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of AgentLender, of each of the conditions precedent set forth belowbelow or the express written waiver thereof by Lender:
(a) the Closing Date shall occur on or before July 31January 16, 20022003;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing required by Agent, to have priority over Agent's Liens)Lender, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance reasonably satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,Collateral Assignment;
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Fee Letter[Intentionally left blank],
(iv) the GuarantyCredit Card Agreements,
(v) the Intercompany Subordination Agreement;Disbursement Letter,
(vi) the Intercreditor AgreementDue Diligence Letter,
(vii) the IP Security Environmental Indemnity Agreement,
(viii) the Mortgages and the Environmental Indemnitieseach Guaranty,
(ix) [Intentionally left blank],
(x) the Representations & Warranties Mortgages for the Real Property owned by GACC and Borrower's corporate headquarters,
(xi) the Officers' Certificate,
(Axii) each the Refinancing Letter Agreement, together with a UCC assignment and other documentation evidencing the assignment by Existing Lender of its Liens in and to the properties and assets of Borrower or any Guarantor,
(xiii) the Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, including, without limitation, the shares of each Guarantor and the warrants issued by Nonni's Food Company, Inc., as well as Stock powers with respect thereto endorsed in blank, or ,
(2xiv) the written acknowledgmentTrademark Security Agreements,
(xv) the Subsidiary Security Agreements, in form and substance satisfactory and
(xvi) a Consent to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control Assignment for each of the items described in clause contracts listed on SCHEDULE 3.1(c)(xvi) (1) above and holds, or is causing to be held, same for collectively the benefit of Agent;"ASSIGNED CONTRACTS"); and
(d) Agent 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 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 Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section SECTION 6.8, the form and substance (including amounts) of which shall be reasonably satisfactory to AgentLender;
(m) [intentionally omitted]Lender shall have received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special California, Delaware and New York counsel to Borrower and Guarantors, in form and substance reasonably satisfactory to Lender, and an opinion of the general counsel of Borrower and Guarantors in form and substance reasonably satisfactory to Lender;
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower and its Subsidiaries have been timely filed and all taxes upon Borrowers Borrower, its Subsidiaries or their respective properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(po) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(qp) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records (including, without limitation, a review of Borrower's payment or resolution of all material past due payables, the minute books for Borrower and its Subsidiaries and the audit work papers for the year 2001), (ii) verification of Borrowers' Borrower's representations and warranties to Lender, (iii) a review of the Lender Groupfinancial results of Borrower and its Subsidiaries for the quarter ended September 2002, and (iv) interviews of loan officers for lenders to Affiliates of Borrower, the results of which all shall be reasonably satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(rq) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are reasonably satisfactory to Agent Lender in its sole discretion;
(sr) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers Borrower shall pay all Lender Group Expenses properly incurred in connection with the transactions evidenced by this Agreement;
(vs) Agent Lender shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, and (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral owned by GACC and issued by a title insurance company reasonably satisfactory to Agent Lender (each a "Mortgage PolicyMORTGAGE POLICY" and, collectively, the "Mortgage PoliciesMORTGAGE POLICIES") in amounts reasonably satisfactory to Agent Lender assuring Agent Lender 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respectLender;
(wt) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent Lender shall have received copies of each of the material Senior Note DocumentsIndentures, each of the Assigned Contracts, and the Tax Allocation Agreement, together with a Officer's Certificate by certificate of the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof;
(u) Lender shall have reviewed each of the Indentures, each of the Assigned Contracts, and the same Tax Allocation Agreement, the results of which shall be reasonably satisfactory to Lender;
(v) Borrower 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 this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(w) Lender shall have received Borrower's Closing Date Business Plan;
(x) MFBI and Fairfield Foods shall have been merged into Borrower, such mergers shall have been consummated and Lender shall have received evidence of such mergers all in form and substance reasonably satisfactory to Lender;
(y) Borrower shall have recorded evidence of the merger of MFBI into Borrower with the U.S. Patent and Trademark Office and Lender shall have received evidence of such recordation in form and substance reasonably satisfactory to Lender;
(z) Lender shall have received duly executed releases from Bank of New York and NationsBank of Texas, N.A. with respect to the Liens on the Intellectual Property Rights listed on SCHEDULE 3.1(z) and evidence of the filing of such releases with the U.S. Patent and Trademark Office, all in form and substance reasonably satisfactory to Lender;
(aa) Lender shall have received duly executed releases or other evidence satisfactory to Lender from Wachovia Bank, National Association, Georgia Department of Labor and Georgia Department of Revenue with respect to the Liens on the real property owned by GACC and evidence of the filing of such releases, all in form and substance reasonably satisfactory to Lender;
(bb) Borrower shall have filed with the U.S. Patent and Trademark Office evidence of its ownership of the "Hot Xxx" and "Original Cookie" trademarks and Lender shall have received evidence of such filing in form and substance reasonably satisfactory to Lender;
(cc) Lender shall have received evidence in form and substance reasonably satisfactory to Lender that not less than $2,500,000 of the sale proceeds from the sale of 36 American Food Limited Partnership, a Texas limited partnership (aka TCBY Americana), shall have been paid to Borrower and Borrower shall have deposited such proceeds in a Cash Management Account;
(dd) Lender shall have received an amendment to the Corky's Security Agreement in form and substance reasonably satisfactory to Lender and duly executed by all parties to the Corky's Security Agreement including, without limitation, the Corky's Shareholders;
(ee) Lender shall have received a duly executed Cash Management Agreement from LaSalle Bank with respect to Account No. 5800290503 together with an opinion of counsel in form and substance reasonably satisfactory to Lender; and
(ff) 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 the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (MRS Fields Holding Co Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31February 14, 2002;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing duly executed by Agent, to have priority over Agent's Liens)Borrower, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Cash Management Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Fee Disbursement Letter,
(iv) the Guaranty,
(v) the Intellectual Property Security Agreement,
(vi) the Intercompany Subordination Agreement;,
(vivii) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental IndemnitiesMortgages,
(ix) the Representations & Warranties Officers' Closing Certificate,
(Ax) each the Stock Pledge Agreement, and together with (B) except as otherwise provided with respect to shares of Stock of in Section 3.2) the respective Restricted Subsidiaries under Section 3.3(b), either (1) all original stock certificates representing evidencing the shares of Capital Stock pledged thereunder, as well as Stock powers and duly executed, undated assignments separate from certificates with respect thereto endorsed in blankto each such stock certificate, or and
(2xi) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentEnvironmental Indemnity Agreement;
(d) Agent 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 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 Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 30 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(m) [intentionally omitted]Lender shall have received Collateral Access Agreements with respect to the following locations: (i) 000 Xxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000, (ii) 000 Xxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000 and (iii) 000 Xxx Xxxxxxx 00, Xxxxxxxxx, Xxxx 00000;
(n) Agent Lender shall have received opinions an opinion of Borrowers' and GuarantorsObligors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(o) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer Chief Financial Officer of ParentBorrower) that all tax returns required to be filed by Borrowers Obligors have been timely filed and all taxes upon Borrowers Obligors or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of BorrowersObligors' books and records and verification of BorrowersObligors' representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the Facilitieslocations where Inventory is located, the results of which shall be satisfactory to AgentLender;
(r) Agent Lender shall have received completed reference checks with respect to BorrowersObligors' senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors[INTENTIONALLY OMITTED];
(t) Agent Lender shall have received Borrowers' Borrower's Closing Date Business Plan;
(u) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent [INTENTIONALLY OMITTED];
(w) Lender shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent Lender (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent Lender assuring Agent Lender 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been releasedLender;
(x) Agent [INTENTIONALLY OMITTED];
(y) Lender shall have received copies of each of the material Senior Note Subordinated Debt Documents, together with a Officer's Certificate by certificate of the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof;
(z) Obligors shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Obligors of this Agreement or any other Loan Document or with the same consummation of the transactions contemplated hereby and thereby; and
(aa) 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 the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunderhereunder (other than any initial Advance made to pay fees due to the Agent or any Lender hereunder or under the Fee Letter), is subject to the fulfillment, to the satisfaction of Agent, Agent and each Lender of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31, 2002;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentIntellectual Property Security Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,Fee Letter, and
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock or other equity interests pledged thereunder, as well as including Stock or LLC powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;.
(db) Agent shall have received a certificate from the Secretary of each Borrower (i) 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 samesame and (ii) certifying the names and true signatures of the officers of such Borrower authorized to sign each Loan Document to which such Borrower is a party;
(ec) [Intentionally Omitted],
(d) Agent shall have received copies of each Borrower's Governing Documentsthe Budget, 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 within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as evidencing that Borrowers have sufficient liquidity available to meet operating needs through the due issuance and valid existence term of the Borrower's and Guarantors' Casino Licensesthis Agreement;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(ue) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vf) Agent shall have received evidence that the Warehouse Facility is in full force and effect (on substantially the same terms as in effect prior to the Relief Date) and that no default or event of default exists thereunder and that the continued maintenance of the Warehouse Facility shall have been approved by the Court;
(g) the Interim Order, in form and substance satisfactory to Lenders, approving the transactions contemplated hereby and granting a first priority perfected security interest in the Collateral subject only to Senior Claims and Avoidance Actions (which claims to proceeds of the Avoidance Actions shall be pari passu claims) shall have been entered by the Court and Agent shall have received a certified copy of such Interim Order;
(h) the automatic stay shall have been modified to permit the creation and perfection of Agent's Liens and security interests and shall have been automatically vacated to permit enforcement of Agent's rights and remedies under the Loan Documents;
(i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear 's counsel shall have received copies of all defects "first day" pleadings and encumbrances except Permitted Liensorders submitted to the Court by Borrowers; and
(j) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31December 19, 20022001;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agentrequired by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements, showing the Lender's Liens (which shall be in a first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentposition;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentLockbox Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Disbursement Letter,
(iv) the Due Diligence Letter,
(v) the Fee Letter,
(ivvi) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security AgreementValidity Agreements,
(viii) the Mortgages and the Environmental IndemnitiesCash Management Agreements,
(ix) the Representations & Warranties Servicing Agreement,
(x) the Officers' Certificate,
(Axi) each the Stock Pledge AgreementAgreements, and covering one hundred percent (B100%) except as otherwise provided with respect to shares of the Capital Stock of the respective Restricted Subsidiaries under Section 3.3(b)Borrower owned by Guarantor, either (1) together with all certificates representing the shares of Capital Stock pledged thereunder, as well as Stock stock powers with respect thereto endorsed in blank, or ,
(2xii) the written acknowledgmentCollateral Agency Agreement,
(xiii) the Subordination Agreements, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of and
(xiv) the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;Approved Forms.
(d) Agent 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 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 Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 ten (10) days of 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 Lender shall have received certificates of status with respect to each Borrower, each dated within 30 thirty (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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mi) [intentionally omitted]
(n) Agent Lender shall have received opinions an opinion of Borrowers' and Guarantors' Borrower's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(oj) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pk) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records and verification of Borrowers' Borrower's representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(rl) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole and absolute discretion;
(sm) Agent Lender shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Borrower's Closing Date Business Plan;
(un) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vo) Agent Borrower shall have received (i) appraisals all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the Real Property Collateral transactions contemplated hereby and thereby;
(p) Lender shall have received evidence satisfactory to Agentit that Borrower has received and retained capital contributions of at least $3,000,000.00 on or prior to the Closing Date;
(q) After giving effect to the Advances to be made on the Closing Date, Availability shall be at least $750,000.00;
(r) Borrower shall have submitted proposed Approved Forms and Required Procedures to Lender, which shall have been approved by Lender and Lender's Counsel in their sole and absolute discretion;
(iis) mortgagee title insurance policies (all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid recorded and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation ------------------------------------------------------- of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentAgent and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be the satisfaction or waiver of the following), of each of the following of the conditions precedent set forth belowprecedent:
(a) the Closing Date shall occur on or before July 31a date ninety (90) days from the date of this Agreement, 2002unless extended by Agent at its sole discretion, for an additional period of time not to exceed ninety (90) days;
(b) Agent shall have lien searches (i) reflecting effective received a Filing Authorization Letter, duly executed by Borrower and each Pledging Subsidiary, together with appropriate financing statements perfecting duly filed in such office or offices as maybe necessary or, in the opinion of Agent, desirable to perfect the Agent's Liens (which shall be first priority, subject only in and to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to Collateral and Agent shall have priority over Agent's Liens), and (ii) listing received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentContribution Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountDisbursement Letter,
(iii) the Fee Letter,
(iv) the GuarantyOfficers' Certificate,
(v) the Intercompany Subordination Partnership Pledge Agreement;,
(vi) the Intercreditor Borrower's Security Agreement,
(vii) the IP Security LLC Pledge Agreement,
(viii) the Mortgages and the Environmental Indemnities,Intercompany Notes, and
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunderSubordination Agreements, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to may be held, same for the benefit of required by Agent;
(d) Agent shall have received (i) counterparts of duly executed Mortgages encumbering Oil and Gas Properties of the Pledging Subsidiaries constituting at least 80% of the Total Proved Developed Producing Reserves of the Pledging Subsidiaries to which value is given in the determination of the Initial Borrowing Base duly executed on behalf of each record owner of such Oil and Gas Properties and evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such Mortgage(s) as may be necessary or, in the reasonable opinion of the Agent, desirable effectively to create a valid, perfected first priority Lien against the Oil and Gas Properties purported to be covered thereby, except as a result of a Permitted Lien; and (ii) duly executed Partnership Pledge Agreements and LLC Pledge Agreement assigning to Agent, and granting to Agent a first perfected priority security interest in, partnership interests in Partnerships and the membership interests in the LLC having Oil and Gas Properties constituting at least 80% the Total Proved Developed Producing Reserves of the Partnerships to which value is given in the determination of the Initial Borrowing Base and evidence of the completion of all recordings and filings of such create valid, perfected first priority Liens in such partnership interests;
(e) Agent shall have received counterparts of duly executed Mortgages encumbering the Gathering Systems duly executed and delivered by each Subsidiary and/or Affiliate of Borrower owning the Gathering Systems or any part thereof and evidence of the completion (or satisfactory arrangement for the completion) of all recordings and filings of such Mortgage(s) as may be necessary or in the reasonable opinion of the Agent, desirable effectively to create a valid, perfected first priority Lien on the Gathering Systems;
(f) The Borrowing Base Properties, the Gathering Systems, and the other Collateral shall be free and clear of all Liens, except Permitted Liens. All filings, notices, recordings and other action necessary to perfect the Liens in the Collateral shall have been made, given or accomplished or arrangements for the completion thereof satisfactory to the Agent and its counsel shall have been made;
(g) Agent shall have received copies of all Governmental Approvals and third party consents and approvals necessary or, in the sole discretion of the Agent, advisable in connection with (i) the mortgaging and pledging of the Mortgaged Properties, and the other Collateral, (ii) the pledging of the partnership interests in the Partnerships, (iii) the pledging of the membership interests in the LLC and (iv) the operations of the Borrower, its Subsidiaries, the LLC and the Partnerships. All such Governmental Approvals and third party consents and approvals shall be in full force and effect;
(h) Agent and Lenders shall have received certificates, dated the Closing Date, from the Borrower's insurers certifying (i) compliance with all of the insurance required by SECTION 6.8 hereof and by the Security Documents and (ii) ----------- that such insurance is in full force and effect;
(i) Agent and Lenders shall have received and shall be satisfied with the contents, results and scope of the Initial Reserve Report;
(j) Agent shall have completed and be satisfied with the results of a review of the Borrowing Base Properties and the other Collateral and the status of the title and the environmental condition of the Borrowing Base Properties;
(k) Borrower shall have delivered to the Agent copies of all Hedging Agreements currently in existence to which Borrower or any of its Subsidiaries is a party;
(l) Agent shall have received a certificate from the Secretary of Borrower and each Borrower attesting of its Subsidiaries: (i)attesting to the resolutions of such Borrower's its Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower it is a party and party, (ii) authorizing specific officers of such Borrower party to execute the same, and (iii) attesting to the incumbency and signatures of its specific officers;
(em) Agent shall have received copies of the Governing Documents of Borrower, each Borrower's Governing Documentsof its Subsidiaries, the LLC and the Partnerships, as amended, modified, or supplemented to the Closing Date, certified by the Secretary an appropriate officer of each such Borrowerentity;
(fn) Agent shall have received a certificate of status with respect to Borrower, each Borrowerof its Subsidiaries, the LLC and the Partnerships, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrowerentity, which certificate shall indicate that such Borrower entity is in good standing in such jurisdiction;
(go) Agent shall have received certificates of status with respect to Borrower, each Borrowerof its Subsidiaries, the LLC and the Partnerships, 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 such Borrowerentity) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower entity is in good standing in such jurisdictions;
(h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(lp) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section SECTION 6.8, the form and substance (including amounts) of ----------- which shall be satisfactory to Agent;
(mq) [intentionally omitted]Agent shall have received Collateral Access Agreements with respect to Borrower's corporate headquarters located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 and Eastern American's headquarters located at 000 00xx Xxxxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000;
(nr) Agent shall have received opinions of Borrowers' and Guarantors' Borrower's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(os) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower, each of its Subsidiaries, the LLC and the Partnerships have been timely filed and all taxes upon Borrowers Borrower, its Subsidiaries, the LLC and the Partnerships or their respective properties, assets, income, and franchises (including Real Property taxes, gaming taxes, sales taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pt) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunderhereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents;
(qu) Agent shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' books the Books and records Records of Borrower, its Subsidiaries, the LLC and the Partnership, and verification of Borrowers' Borrower's representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(rv) Agent shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent in its sole discretion;
(sw) Agent Lender shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Borrower's Closing Date Business Plan;
(ux) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vy) Agent Borrower shall have received (i) appraisals all licenses, approvals or evidence of other actions required by any Person or Governmental Authority in connection with the execution and delivery by Borrower and its Subsidiaries of this Agreement or any other Loan Document or with the consummation of the Real Property Collateral satisfactory to Agent, transactions contemplated hereby 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Groupthereby;
(z) Agent shall have received an Indenture Compliance Certificate from the Board chief financial officer or president of Directors' designation Borrower certifying that (i) the Advances and the Term Loan will not result in a default or event of each of RGMMdefault under the Indenture and (ii) demonstrating, RGMNMin reasonable detail, and RRN as "Unrestricted Subsidiaries" in accordance compliance by Borrower with the provisions Fixed Charge Coverage Ratio (as defined in the Indenture) requirement set forth in SECTION 4.7 (i) of the definition of "Unrestricted Subsidiary" herein;Indenture, after giving effect --------------- to the Advances and the Term Loan; and
(aa) 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 and its counsel.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) satisfaction of the Closing Date shall occur on or before July 31, 2002conditions precedent set forth in Section 3.1 above;
(b) Agent Parent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priorityreceived the proceeds of the Senior Notes in an amount sufficient, subject only to together with the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged equity investment by ValueAct Capital in writing by AgentSeitel Holdings and Borrowers' and their Subsidiaries' cash on hand, to have priority over Agent's Liens)fully redeem and cancel the Existing Notes tendered for payment and to pay all merger consideration for the Acquisition and evidence thereof, and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance reasonably satisfactory to AgentLender, or (z) as otherwise agreed in writing by Agentshall have been delivered to Lender;
(c) Agent The Existing Notes tendered for payment shall have been fully redeemed and cancelled;
(d) The Acquisition shall have been consummated and evidence thereof, reasonably satisfactory to Lender, shall have been delivered to Lender;
(e) Borrowers shall have Excess Availability of $20,000,000.00 on the Closing Date immediately after giving effect to the Acquisition and Lender shall have received each of evidence thereof, reasonably satisfactory to Lender;
(f) Lender shall have received the following documentsParent Stock Pledge, in form and substance satisfactory to AgentLender in the exercise of its Permitted Discretion, duly executed, and each such document shall be in full force and effect:; and
(ig) Lender shall have received the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunderopinion Dechert LLP, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgmentcounsel to Seitel Holdings, in form and substance satisfactory to Agent, Lender in the exercise of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of 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 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 within 10 days of 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 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 such Borrower) 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 jurisdictionsPermitted Discretion;
(h) Agent the Senior Notes shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented been issued pursuant to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be Offering in form and substance reasonably satisfactory to Lender and its counsel in their Permitted Discretion, (ii) not mature, by their terms until at least 90 days after the Lender Group;
Maturity Date, (yiii) Agent shall have received copies be general unsecured obligations of each Parent, and (iv) be effectively, but not contractually subordinated to all indebtedness and other obligations owing under the Loan Documents to the extent of the FF&E Agreements, together with a Officer's Certificate by the Secretary value of the Borrower certifying each such document as being a true, correct, and complete copy thereof, assets and the same shall be in form other collateral securing the Indebtedness and substance reasonably satisfactory to Obligations under the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Loan Documents
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any initial credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31February 28, 20022005;
(b) Agent shall have lien searches received (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first prioritythe UCC Filing Authorization Letter, subject only to duly executed by each of the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), Source Alliance Subsidiaries and (ii) listing all other effective confirmation from a service company utilized by Agent or its counsel that financing statements which name any Borrower on Form UCC-1 have been duly filed against each Source Alliance Subsidiary in such office or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) offices as debtor that are filed may be necessary or, in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any opinion of the Collateral or property of such Restricted SubsidiaryAgent, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as desirable to which Agent has received duly executed authorizations perfect the security interests purported to be created by the applicable secured party Security Agreement and the Pledge Agreement; Collateral Agent is also authorized to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentadditional UCC-1 Financing Statement for each Existing Loan Party;
(c) Agent shall have received each of the following documentsdocuments (or if so provided in this subsection (c), the Borrowers shall have used commercially reasonable efforts to provide the following documents to Agent on or prior to the Closing Date), in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of Loan Parties shall use commercially reasonable efforts to deliver to the Agent on or prior to the Closing Date under Sections 4.7 and 7.19 hereof a Cash Management Agreement with respect to be executed and delivered each Cash Management Account owned by the Loan Parties not otherwise subject to Agenta Cash Management Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower Loan Parties shall use commercially reasonable efforts to deliver to the order of Agent (for on or prior to the benefit of Closing Date a Control Agreement with respect to each Securities Account and Deposit Account owned by the Lender Group) in the original principal amount of the Maximum Revolver AmountLoan Parties not otherwise subject to a Control Agreement,
(iii) a Copyright Security Agreement for each Loan Party that owns any registered copyrights or applications therefor, to the extent not already subject to a Copyright Security Agreement in favor of Collateral Agent,
(iv) the Disbursement Letter,
(v) the Perfection Certificate,
(vi) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) to the IP Security Agreement,
(viii) extent not previously delivered, the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
Canadian Documents, together with (A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and (B) all promissory notes pledged thereunder, as well as allonges thereto or other appropriate transfer certificates endorsed in blank,
(2viii) [Intentionally Omitted]
(ix) the written acknowledgmentIntercompany Subordination Agreement,
(x) the Borrowers shall use commercially reasonable efforts to deliver to Collateral Agent on or prior to the Closing Date a Vendor Intercreditor Agreement, duly executed by each Vendor having a Lien on any of the Collateral,
(xi) a consent, in form and substance reasonably satisfactory to Agent, executed by SunTrust Bank under the SunTrust Real Estate Loan Agreement, pursuant to which SunTrust Bank has consented to the Alliance Merger and the Indebtedness under this Agreement,
(xii) a Patent Security Agreement for each Loan Party that owns any registered Patents or applications therefor, to the extent not already subject to a Patent Security Agreement,
(xiii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by the GECC Agent of a bailee reasonably acceptable its Liens in and to Agent that such bailee is in possession the properties and assets of Alliance and its Subsidiaries (or control written authorization of the items described in clause (1) above and holds, or is causing to be held, same GECC Agent for the benefit Collateral Agent to file such UCC termination statements),
(xiv) the Pledge Agreement, together with (i) all certificates representing the shares of Stock pledged thereunder (to the extent not previously delivered to Collateral Agent;), as well as Stock powers with respect thereto endorsed in blank, and (ii) all promissory notes pledged thereunder, together with an allonge for each promissory note (or the written agreement of the GECC Agent to deliver such Stock certificates and promissory notes to the Collateral Agent within three Business Days of the Closing Date, subject to such other terms and conditions as the Collateral Agent may reasonably require),
(xv) a Trademark Security Agreement for each Loan Party that owns any registered trademarks or applications therefor, to the extent not already subject to a Trademark Security Agreement,
(xvi) the Security Agreement, and
(xvii) the Contribution Agreement.
(d) Agent shall have received (i) 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 samesame and (ii) a certificate from the Secretary of the Parent certifying as to the officers authorized to deliver Compliance Certificates;
(e) Agent shall have received (i) copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower, or (ii) in the case of an Existing Loan Party, a certification from such Secretary that such Governing Documents have not been amended, supplemented or otherwise modified since October 30, 2003;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(ig) Agent shall have received (i) copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor, or (ii) a certification from such Secretary that such Governing Documents have not been amended, supplemented or otherwise modified since October 30, 2003;
(jh) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Collateral Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(mi) [intentionally omitted]Borrowers shall use commercially reasonable efforts to deliver to Collateral Agent on or prior to the Closing Date, to the extent not previously delivered, Collateral Access Agreements with respect to the Leased Real Property set forth in Schedule L-1 and the Mortgaged Real Property set forth in Schedule M-1, except to the extent Agent has established a Rent Reserve or Mortgage Reserve against the Borrowing Base for such Leased Real Property location or Mortgaged Real Property location (as applicable);
(nj) Agent shall have received opinions of Borrowers' and Guarantors' primary outside counsel and in-house counsel in form and substance satisfactory to Agent, which opinions shall include opinions including, without limitations, as to the due issuance and valid existence effectiveness of the Borrower's Alliance Merger and Guarantors' Casino Licensesthe Reincorporation Merger, and the Borrowers shall use commercially reasonable efforts to provide opinions for such local counsel of the Loan Parties as Agent may reasonably request;
(ok) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) Parent that all tax returns required to be filed by Borrowers and their Subsidiaries have been timely filed and all taxes upon Borrowers and their Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, gaming sales taxes, payroll taxes and payroll excise taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtest or otherwise permitted to remain unpaid under Section 6.7;
(pl) Borrowers shall have the Required Availability after giving effect use commercially reasonable efforts to the initial extensions of credit hereunder;
(q) provide to Agent shall have completed such documentation and other information as Agent may reasonably request in connection with its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each site-visit appraisal of the Facilities, the results Eligible Inventory performed by an Acceptable Appraiser as of which shall be satisfactory to Agenta recent date;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(tm) Agent shall have received Borrowers' Closing Date Business Plan;
(un) Borrowers shall pay have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vo) Agent shall have received (i) appraisals copies of the most recent phase-I environmental report previously prepared for any Owned Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respectProperty;
(wp) Agent Borrowers and each of their Subsidiaries shall have received evidenceall licenses, satisfactory to Agent, that each approvals or evidence of (i) other actions required by any Governmental Authority in connection with the 10% First Mortgage Notes due 2004 of Borrower execution and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, delivery by Borrowers or satisfactorily "legally-defeased", in full from the proceeds their Subsidiaries of the Notes (as such term is defined in Loan Documents or with the Indenture) and that all liens in respect thereof have been releasedconsummation of the transactions contemplated thereby;
(xq) Agent shall have received copies of each of the material Senior Note DocumentsMaterial Contracts identified on Schedule 3.1(q), together with a Officer's Certificate by the Secretary certificate of the Borrower an Authorized Officer of Parent certifying each such document as being a true, correct, and complete copy thereof.
(r) The Alliance Merger, including all of the terms and conditions thereof, shall have been duly authorized by the Board of Directors and (if required by applicable law) the shareholders or members of the parties to the Alliance Merger Agreement, and all Alliance Merger Documents shall have been duly executed and delivered by the same parties thereto and shall be in full force and effect in all respects on and as of the Closing Date; the representations and warranties made by Alliance and the applicable Loan Parties set forth in the Alliance Merger Documents shall be true and correct in all material respects as if made on and as of the Closing Date; each of the material conditions precedent to the obligations of each of the parties to the Alliance Merger Documents to consummate the Alliance Merger as set forth in the Alliance Merger Documents shall have been satisfied in all material respects or waived with the consent of Agent (which consent shall not be unreasonably withheld or delayed) and the Alliance Merger shall be consummated contemporaneously herewith in accordance with any applicable law (including the expiration or termination of any applicable waiting period under the Hart-Scott- Rodino Axx) xxx xxe Alliance Merger Documents; and Agent shall have xxxxxxed evidence satisfactory to it as to the foregoing, as to the receipt by all parties to the Alliance Merger Documents of all necessary regulatory, creditor, lessor, and other third-party approvals, and as to compliance with any applicable law to any of such parties.
(s) The Reincorporation Merger, including all of the terms and conditions thereof, shall have been duly authorized by the Board of Directors and (if required by applicable law) the shareholders or members of the parties to the Reincorporation Documents and all Reincorporation Documents shall have been duly executed and delivered by the parties thereto and shall be in full force and effect in all respects on and as of the Closing Date; the representations and warranties made by the applicable Loan Parties and Source Missouri set forth in the Reincorporation Documents shall be true and correct in all material respects as if made on and as of the Closing Date; each of the material conditions precedent to the obligations of each of the parties to the Reincorporation Documents to consummate the Reincorporation Transaction as set forth in the Reincorporation Documents shall have been satisfied in all material respects or waived with the consent of Agent (which consent shall not be unreasonably withheld or delayed) and the Reincorporation Merger shall be consummated contemporaneously herewith in accordance with any applicable law and the Reincorporation Documents; and Agent shall have received evidence satisfactory to it as to the foregoing, as to the receipt by all parties to the Reincorporation Documents of all necessary regulatory, creditor, lessor, and other third-party approvals, and as to compliance with any applicable law to any of such parties;
(t) Agent shall have received (i) a true and correct copy of the Merger Certificates filed in the State of Delaware with respect to the Alliance Merger and the Reincorporation Merger, each certified as of the Closing Date by the Secretary of State of the State of Delaware, and (ii) when available, a true and correct copy of the Articles of Merger filed in the State of Missouri with respect to the Reincorporation Merger, certified as effective as of the Closing Date by the Secretary of State of the State of Missouri;
(u) no injunction, writ, restraining order, or other order of any nature restricting or prohibiting, directly or indirectly, the consummation of the Alliance Merger or the Reincorporation Merger shall have been issued and remain in force by any Governmental Authority against any Loan Party, Alliance or Source Missouri, nor shall any proceeding have been commenced seeking to obtain the same;
(v) the Loan Parties shall have executed Agent's standard form authorizing Agent to publish a tombstone advertisement with respect to this transaction; and
(w) all other documents and legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;its Permitted Discretion.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 3116, 20022001;
(b) Agent shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first prioritystatements, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, assignments or specifically acknowledged in writing amendments required by Agent, to have priority over Agent's Liens)duly executed by Borrower, and (ii) listing Agent shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, or amendments thereto if such documents are already in existence, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountIntellectual Property Security Agreement,
(iii) the Disbursement Letter,
(iv) the Due Diligence Letter,
(v) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor AgreementCash Management Agreements,
(vii) the IP Security Agreement,Officers' Certificate, and
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent';
(d) Agent shall have received a certificate from the Secretary an officer 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 within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(ni) Agent shall have received opinions an opinion of Borrowers' and Guarantors' Borrower's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(oj) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer President of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(qk) Agent shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records and verification of Borrowers' Borrower's representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilitieslocations where Inventory is located, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;
Appears in 1 contract
Samples: Loan and Security Agreement (Leapfrog Enterprises Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make an Advance on the initial Advance (or otherwise to extend any credit provided for hereunder), occasion of the Initial Extension of Credit hereunder is subject to the fulfillment, to the satisfaction of Agent, of each of the following conditions precedent set forth belowbefore or concurrently with the Initial Extension of Credit:
(a) The Acquisition shall have been consummated in accordance with the Closing Date shall occur on terms of the Stock Purchase Agreement without any waiver or before July 31amendment thereto (unless such amendment or waiver in the reasonable judgment of the Administrative Agent is not adverse in any material respect to the interests of the Lender Parties), 2002;and in compliance with all applicable laws.
(b) Agent shall have lien searches The U.S. Borrower (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priorityhave received not less than $108,000,000 in cash for the purchase of common equity by the Investor Group, subject only to representing approximately 90% of the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens)outstanding common equity, and (ii) shall have received approximately $200,000,000 in gross cash proceeds from the sale of the Subordinated Notes.
(c) The Administrative Agent shall be reasonably satisfied with the corporate and legal structure and capitalization of each Loan Party, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and of each agreement or instrument relating to such structure or capitalization.
(d) The Administrative Agent shall be reasonably satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "SURVIVING DEBT"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all such Surviving Debt shall be on terms and conditions reasonably satisfactory to the Administrative Agent.
(e) Before giving effect to the Acquisition and the other transactions contemplated by this Agreement, there shall have occurred no material adverse change in the business, financial condition, operations, assets, liabilities or prospects of any Loan Party or any of its Subsidiaries since June 30, 1997.
(f) There shall have occurred no material adverse change in loan syndication, financial or capital market conditions generally that has impaired or could reasonably be expected to impair syndication of the Facilities.
(g) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of the Acquisition, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby.
(h) Nothing shall have come to the attention of the Lender Parties to lead them to believe (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Acquisition, either Borrower or its Subsidiaries would not have good and marketable title to all material assets of such Borrower and such Subsidiaries reflected in the Information Memorandum and (iii) that the Acquisition will have a Material Adverse Effect; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrowers and their respective Restricted Subsidiaries as they shall have reasonably requested.
(i) All governmental and third party consents and approvals necessary in connection with the Acquisition, the Loan Documents and the Related Documents and the transactions contemplated thereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the Acquisition, the Loan Documents and the Related Documents and the transactions contemplated thereby.
(j) The Administrative Agent shall have received the fees referred to in Section 2.08(c) to be received on the Closing Date and under a separate letter agreement dated December 2, 1997 between the U.S. Borrower and the Administrative Agent.
(k) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of each Borrower and each other Loan Party approving each Loan Document and Related Document to which it is or is to be a party and the transactions contemplated thereby, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Acquisition, this Agreement, the Notes, each other Loan Document and each Related Document.
(iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, or in the case of the Canadian Borrower, the Ministry of Consumer and Commercial Relations of the Province of Ontario, dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each such Borrower and each such other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State or Province of the jurisdiction of its incorporation.
(iv) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter of such Borrower or such other Loan Party since the date of the certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the absence of any proceeding for the dissolution or liquidation of such Borrower or such other Loan Party, (D) the truth and accuracy of the representations and warranties contained in the Loan Documents in all material respects as though made on and as of the date of the Initial Extension of Credit, (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default, and (F) in the case of the U.S. Borrower only, the completion of the restructuring contemplated by the memorandum attached hereto as Schedule 3.01(l).
(v) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(vi) A pledge agreement in substantially the form of Exhibit D hereto (together with each other pledge agreement or Pledge Agreement Supplement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "PLEDGE AGREEMENT"), duly executed by the U.S. Borrower and the Canadian Borrower, together with:
(A) certificates representing 100% of the issued and outstanding stock (or other ownership or profit interest) owned by the U.S. Borrower of all of its first-tier Subsidiaries (other than Unrestricted Subsidiaries), accompanied by undated stock powers executed in blank; PROVIDED that no more than 66% of the issued and outstanding stock of any first-tier Foreign Subsidiaries of the U.S. Borrower (other than Unrestricted Subsidiaries and the Canadian Borrower) shall be required to be pledged,
(B) copies of proper financing statements, to be duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement,
(C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all other effective financing statements which filed in the jurisdictions referred to in clause (B) above that name any the U.S. Borrower or any other Loan Party as debtor, together with copies of its Restricted Subsidiaries such other financing statements,
(or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside D) evidence of the ordinary course completion of business) as debtor that are filed in the applicable filing offices all other recordings and filings of or with respect to such Borrower the Pledge Agreement that the Administrative Agent may reasonably deem necessary or any such Restricted Subsidiarydesirable in order to perfect and protect the Liens created thereby, none and
(E) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement has been taken.
(vii) A guaranty in substantially the form of which financing statements shall cover any Exhibit E hereto (together with each other guaranty required to be delivered as of the Collateral Closing Date pursuant to Section 5.01(k), in each case as amended, supplemented or property of such Restricted Subsidiaryotherwise modified from time to time in accordance with its terms, except (x) financing statements evidencing or perfecting Permitted Liensthe "SUBSIDIARIES GUARANTY"), (y) financing statements as to which Agent has received duly executed authorizations by each of the Subsidiary Guarantors.
(viii) Certified copies of each of the Related Documents, duly executed by the applicable secured party to file executed termination statements or partial release statements parties thereto and in form and substance satisfactory to Agentthe Lender Parties, or (z) as otherwise agreed together with all agreements, instruments and other documents delivered in writing by Agent;connection therewith.
(cix) Agent Such financial, business and other information regarding each Loan Party as the Lender Parties shall have received each reasonably requested, including, without limitation, (A) audited Consolidated financial statements of the following documentsU.S. Borrower and its Consolidated Subsidiaries for Fiscal Years 1995 and 1996, (B) unaudited Consolidated financial statements of the U.S. Borrower and its consolidated Subsidiaries for each Fiscal Quarter in form Fiscal Year 1997 that ended more than 45 days prior to the initial Closing Date, (C) a Consolidated pro forma balance sheet of the U.S. Borrower and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required its Consolidated Subsidiaries as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of 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 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 within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business Acquisition and legal due diligence, including (i) a collateral audit other transactions and review of Borrowers' books financings contemplated by the Related Documents and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to AgentLoan Documents, and (iiD) an inspection of each Consolidated forecasted financial statements of the FacilitiesU.S. Borrower and its Consolidated Subsidiaries for the five-year period after the Closing Date, all of the foregoing (including, without limitation, the results of which shall statements to be satisfactory delivered pursuant to Agent;
clauses (rA) Agent shall have received completed reference checks with respect through (D) above) to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;Administrative Agent.
(yx) Agent shall have received copies Letters and certificates, in substantially the form of Exhibit H and I hereto, respectively, attesting to the Solvency of each of the FF&E AgreementsBorrowers after giving effect to the Acquisition and the other transactions contemplated hereby, together with a Officer's Certificate by from its chief financial officer or, in the Secretary case of the Borrower certifying each such document as being a trueCanadian Borrower, correctits assistant treasurer, and complete copy thereofa nationally recognized appraisal firm, valuation consultant or investment banking firm satisfactory to the Administrative Agent.
(xi) A favorable opinion of Xxxxxx and Xxxxxxx, U.S. counsel for the same shall be Borrowers, in substantially the form of Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xii) A favorable opinion of Osler, Xxxxxx & Harcourt, Canadian counsel for the Canadian Borrower, in substantially the form of Exhibit F-2 and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiii) A favorable opinion of Shearman & Sterling, counsel for the Administrative Agent, in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Accuride Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agentthe Lender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31___________, 20022004;
(b) Agent the Lender shall have lien searches (i) reflecting effective filed financing statements perfecting Agent's Liens (which against the Borrowers required by the Lender and the Lender shall be first priority, subject only have received searches respecting the Borrowers with results satisfactory to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by AgentLender;
(c) Agent the Lender shall have received each of the following documents, in form and substance satisfactory to Agentthe Lender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentDisbursement Letter,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountIntellectual Property Security Agreement,
(iii) Stock Pledge Agreements pursuant to which 100% of the Fee Letterequity of each of the Borrowers, with the exception of the equity of Zanett, Inc., has been pledged to the Lender, along with the originals of the stock certificates that have been pledged and duly executed blank stock powers relating thereto,
(iv) the GuarantyPromissory Notes,
(v) Subordination Agreements from (A) each of the Intercompany Subordination Agreement;holders of promissory notes or debt for borrowed money issued by any Borrower and (B) each such Borrower that issued such debt,
(vi) the Intercreditor Agreement,Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Delta Communications Group, Inc., and
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) W-9 forms duly completed for each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentBorrowers;
(d) Agent the Lender shall have received a certificate from the Secretary of each Borrower attesting to (i) 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 samesame and (ii) the incumbency and signatures of such officers;
(e) Agent the Lender 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 the Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of before 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 the Lender shall have received certificates of status with respect to each Borrower, each dated within 30 days of before the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.86.7, the form and substance (including amounts) of which shall be satisfactory to Agentthe Lender;
(mi) [intentionally omitted]
(n) Agent the Lender shall have received opinions Collateral Access Agreements with respect to such leased locations of the Borrowers as the Lender deems appropriate, which may include those at (i) 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, (iii) 0000 Xxxxxxxxxx Xxxxx, Xxxxx, Xxxx 00000, (iv) 0000 X. Xxxx Xxxx, Xxxxxx, Xxxxxxxx 00000, (v) 00 Xxxxxxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx 00000, and (vi) 00000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx 00000-0000;
(j) the Lender shall have received an opinion of the Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(ok) Agent the Lender shall have received a duly completed and executed current Borrowing Base Certificate in form and substance satisfactory evidence (including a certificate of to the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestLender;
(pl) the Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(qm) Agent the Lender shall have completed its business business, legal, and legal collateral due diligencediligence with respect to the Borrowers, including (i) a collateral audit and review of Borrowers' each Borrower's books and records records, receipt and review of each Borrower's audited financial statements for its fiscal year that ended on December 31, 2003 in form and detail and with results satisfactory to the Lender, and verification of the Borrowers' representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(rn) Agent the Borrowers shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative paid to the execution, delivery, and performance Lender the initial installment of the Loan Documents by commitment fee in the Borrowers amount of $25,000.00 and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vo) Agent the then unpaid principal balance of Indebtedness subordinated to the Obligations on terms acceptable to the Lender shall not be less than $6,000,000.00; and
(p) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have received (i) appraisals of the Real Property Collateral satisfactory to Agentbeen delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agentthe Lenders, of each of the conditions precedent set forth below:
(a) the The Closing Date shall occur on or before July 31November 1, 2002;
(b) Agent shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing required by Agent, to have priority over Agent's Liens)duly executed by Borrower, and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted SubsidiaryAgent shall have received UCC, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiarytax lien, except (x) financing statements evidencing or perfecting Permitted Lienstitle searches and judgment searches, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or the Lenders (zincluding fixture filings) as otherwise agreed in writing by Agentand Agent shall have received searches reflecting the filing of all such financing statements;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentDisbursement Letter,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountDue Diligence Letter,
(iii) the Fee LetterCanadian Guarantee,
(iv) the GuarantyCanadian General Security Agreement and the Hypothec,
(v) the Intercompany Subordination Agreement;Mortgages and all ancillary documents required by or customary under state and local laws in connection therewith,
(vi) the Intercreditor AgreementOfficers' Certificate,
(vii) the IP Security AgreementPay-Off Letter,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or ,
(2ix) the written acknowledgmentIntellectual Property Security Agreement,
(x) the Interlender Agreement,
(xi) the Indenture,
(xii) the Control Agreements, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of and
(xiii) the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentCash Management Agreements;
(d) Agent The Lenders 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 within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, and (ii) mortgagee title insurance policies and surveys for Real Property Collateral valued at more than $1,000,000 (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent the Lenders (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent the Lenders assuring Agent the Lenders 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respectLenders;
(we) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full a certificate from the proceeds Secretary of each Loan Party attesting to the Notes (as resolutions of such term Loan Party's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Loan Party is defined in a party and authorizing specific officers of such Loan Party to execute the Indenture) and that all liens in respect thereof have been releasedsame;
(xf) Agent shall have received copies of each of the material Senior Note Loan Party's Governing Documents, together with a Officer's Certificate as amended, modified, or supplemented to the Closing Date, certified by the Secretary of the Borrower certifying each such document Loan Party;
(g) Agent shall have received a certificate of status with respect to each such Loan Party, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of each such Loan Party, which certificate shall indicate that each such Loan Party is in good standing in such jurisdiction;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as being a truerequired by Section 6.8, correctthe form, scope and substance of which shall be satisfactory to Agent;
(i) Agent and Lenders shall have received an opinion of the Loan Parties' counsel concerning, among other things, corporate existence, due authorization, execution and delivery, as of the Closing and of ACC Canada's counsel concerning, among other things, corporate existence, enforceability, due authorization, execution and delivery, and complete copy thereofperfection of the Agent's security interest, each in form and substance satisfactory to Lenders;
(j) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of each Loan Party) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon each Loan Party or its respective properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the same subject of a Permitted Protest;
(k) Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(l) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Loan Party's books and records and verification of each Loan Party's representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) an inspection of each of the locations where Inventory is located, including, but not limited to, retail locations randomly selected by the Agent, the results of which shall be satisfactory to Agent, and (iii) satisfactory review of the June 2002 physical inventory results, the results of which are acceptable to Lenders in their sole discretion;
(m) Agent shall have received an appraisal of the Net Liquidation Percentage applicable to the Loan Parties' Inventory, the results of which shall be satisfactory to Agent;
(n) The Loan Parties shall have received all licenses, approvals or evidence of other actions, if any, required by any Governmental Authority in connection with the execution and delivery by the Loan Parties of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(o) 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 the Lender GroupLenders;
(yp) Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(q) Lenders shall have received a certified copy of the Business Plan;
(r) Lenders shall have received a completed Enterprise Value determination acceptable to the Lenders in their sole discretion;
(s) Agent shall have hired an appraiser to appraise the Company's headquarters at 0000 Xxxx Xxxxxxx, Chicago, Illinois;
(t) Agent shall have received copies of each of the FF&E AgreementsDesktop Real Estate appraisals, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably acceptable to Agent;
(u) The Confirmation Order shall be a final, nonappealable order, and Lenders shall have received a copy thereof, certified by the clerk of the Bankruptcy Court;
(v) All Indebtedness of the Borrower under the Post-Petition Loan Agreement outstanding as of the Closing Date shall be repaid in full (which may be with the proceeds of the initial Advances and Term Loans made hereunder);
(w) Lenders shall have received evidence, satisfactory to the Lender Group;Lenders, that each of the conditions precedent to the Effective Time and consummation of the Plan shall have been satisfied or, to the extent permitted by the Plan, and consented to by the Lenders, waived, and the Effective Time shall have occurred; and
(zx) Agent shall All necessary government and third party approvals required to be obtained by Borrower or any of its Subsidiaries in connection with the Reorganization have received the Board of Directors' designation of each of RGMM, RGMNMbeen obtained and remain in effect, and RRN as "Unrestricted Subsidiaries" in accordance with all applicable waiting periods have expired without any action being taken by any competent authority which restrains, prevents, impedes, delays or imposes adverse conditions upon, the provisions set forth in consummation of the definition of "Unrestricted Subsidiary" herein;Reorganization.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date All financing statements required by Lender, shall occur on or before July 31, 2002have been filed;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,Intellectual Property Security Agreement;
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,All Control Agreements and/or Cash Management Agreements;
(iii) the Fee Letter,Credit Card/Payment Agreement with TransFirst, Inc.;
(iv) the Guaranty,Fee Letter;
(v) the Intercompany Subordination Agreement;Disbursement Letter,
(vi) the Intercreditor Agreement,Perfection Certificate of each Borrower;
(vii) the IP Security Agreement,Certificate of Officers of each Borrower;
(viii) the Mortgages and the Environmental Indemnities,Signature Authorization;
(ix) the Representations & Warranties Certificate,Waiver Letter; and
(Ax) each Stock Pledge AgreementAssignment of Services Contracts and Consent of Assignor.
(c) Lender shall have received evidence of delivery of all required transfer forms and/or notices to American Express, Chase Paymentech, Discover Network and (B) except as otherwise provided with respect PayPal relating to shares payment of Stock proceeds of Inventory sales directly to the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentConcentration Account;
(d) Agent Lender shall have received evidence that any and all of Borrower’s deposit accounts with Bank of the West have been closed and terminated;
(e) Lender shall have received Collateral Access Agreements with respect to any of the leased Borrower’s distribution center locations;
(f) Lender shall have received Bailee Acknowledgments with respect to any of the Borrower’s third party warehouse locations;
(g) Lender shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board ’s board of Directors 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 Lender shall have received copies of each Borrower's ’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(fi) Agent Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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;
(gj) Agent Lender shall have received certificates of status with respect to each 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(ml) [intentionally omitted]
(n) Agent Lender shall have received opinions of Borrowers' and Guarantors' Borrower’s counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(om) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtests;
(pn) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower’s books and records and verification of Borrowers' Borrower’s representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the Facilitieslocations where Inventory is located, the results of which shall be satisfactory to AgentLender;
(ro) Agent Lender shall have received completed reference checks with respect to Borrowers' senior managementBorrower’s management and the holders of any Stock of the Borrower, the results of which are satisfactory to Agent Lender in its sole discretion;
(sp) Agent Lender shall have received evidencean appraisal of the Net Retail Liquidation Value and Net Liquidation Percentage applicable to Borrower’s Inventory, the results of which shall be satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the GuarantorsLender;
(tq) Agent Lender shall have received Borrowers' the Closing Date Business Plan;
(ur) Borrowers Borrower shall pay have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vs) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note DocumentsService Contracts, together with a Officer's Certificate by certificate of the Secretary of the applicable Borrower certifying each such document as being a true, correct, and complete copy thereof;
(t) Borrower 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 this Agreement or any other Loan Document or with the same consummation of the transactions contemplated hereby and thereby;
(u) 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 the Lender Group;Lender; and
(yv) Agent Lender shall have received copies received, reviewed and approved Borrower’s plan to resolve pending litigation regarding the authenticity of each of Inventory bearing the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, “Cartier” trade name and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;trademark.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 317, 20022003;
(b) Agent Lender shall have lien searches (i) reflecting effective received appropriate financing statements perfecting Agenton Form UCC-1 to be duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender's Liens (which shall be first priority, subject only in and to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by AgentCollateral;
(c) Agent Lender shall have received each of the following documents, in form and substance reasonably satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentFee Letter,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountGuarantor Security Agreement,
(iii) the Fee LetterGuaranty,
(iv) the GuarantyIntercompany Subordination Agreement,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vi) the Officers' Certificate,
(vii) the IP Security AgreementPay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or and
(2ix) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentTrademark Security Agreement;
(d) Agent 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 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 Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 20 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board board of Directors directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section SECTION 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(m) [intentionally omitted]Borrower shall use its reasonable best efforts to obtain a Collateral Access Agreement, executed and delivered by each party thereto, with respect to Borrower's Headquarters;
(n) Agent Lender shall have received opinions an opinion of Borrowers' and Guarantors' Borrower's counsel in form and substance reasonably satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunderhereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents;
(qp) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's and its Subsidiaries books and records and verification of Borrowers' Borrower's representations and warranties to the Lender GroupLender, the results of which shall be reasonably satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(rq) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are reasonably satisfactory to Agent Lender in its sole discretion;
(sr) Agent Lender shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Borrower's Closing Date Business Plan;
(us) Borrowers Borrower shall pay have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vt) Agent Borrower and each of its Subsidiaries shall have received (i) appraisals all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Real Property Collateral satisfactory to AgentLoan Documents or with the consummation of the transactions contemplated thereby; and
(u) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Mortons Restaurant Group Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation obligations of the Lender Group (or any member thereof) Lenders and the Issuing Bank to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to Extension of Credit shall not become effective until the fulfillment, to the satisfaction of Agent, of date on which each of the following conditions precedent set forth below:is satisfied (or waived in accordance with Section 10.02) (as used in this Section 7.01, Extension of Credit means the making of any Loan or the issuance of any Letter of Credit):
(a) Appropriate Notes are issued payable to the Closing Date shall occur on or before July 31order of such Lender, 2002if requested;
(b) The Administrative Agent (or its counsel) shall have lien searches received (i) reflecting effective financing statements perfecting Agent's Liens from each party hereto either (1) a counterpart of this Agreement signed on behalf of such party, or (2) written evidence satisfactory to the Administrative Agent (which shall be first priority, subject only to the Permitted Liens (if anymay include telecopy transmission of a signed signature page of this Agreement) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), such party has signed a counterpart of this Agreement and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries from each Subsidiary that is a guarantor, either (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside 1) a counterpart of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property Guaranty signed on behalf of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agentparty, or (z2) as otherwise agreed in writing by Agentwritten evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of the Guaranty) that such party has signed a counterpart of the Guaranty;
(c) The Administrative Agent and the Lenders shall have received each all fees and other amounts due and payable on the Effective Date, including, to the extent invoiced, reimbursement or payment of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, all out-of-pocket expenses required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in reimbursed or paid by the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agenthereunder;
(d) Agent The Lenders shall have received a certificate from (i) satisfactory audited consolidated financial statements of the Secretary Borrower (and its predecessor entity) for the three most recent fiscal years ended prior to the Effective Date as to which such financial statements are available, (ii) satisfactory unaudited interim consolidated financial statements of the Borrower for each fiscal quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph as to which such financial statements are available, (iii) pro forma consolidated financial statements as of the Effective Date of the Borrower attesting and its Subsidiaries for the most recent fiscal year after giving effect to the Loans made under this Agreement and (iv) projections prepared by the Borrower of its balance sheet, income statements, Consolidated Leverage Ratio and the Consolidated Interest Coverage Ratio for the term of this Agreement;
(e) The Administrative Agent (or its counsel) shall have received certified copies of the resolutions of such Borrower's (i) the Board of Directors of the General Partner, as general partner of and on behalf of the Borrower, authorizing its the execution, delivery, delivery and performance of this Agreement and the other Loan Documents to which such Borrower execution, issuance, delivery and performance of its Notes and (ii) the Board of Directors of and on behalf of each Subsidiary that is a party guarantor, authorizing the execution, delivery and authorizing specific officers of such Borrower to execute performance under 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 BorrowerGuaranty Agreement;
(f) The Administrative Agent (or its counsel) shall have received certificates of responsible officers of the General Partner, as general partner and on behalf of the Borrower, to the effect that:
(i) the representations and warranties contained in ARTICLE III are true and accurate on and as of the date of the making of each such Loan as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date); and
(ii) no event has occurred and is continuing or would result from the proposed Borrowing, which constitutes an Event of Default or a Default.
(g) The Administrative Agent (or its counsel) shall have received an opinion:
(i) of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, special counsel to the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(ii) of an associate general counsel or the general counsel of the Borrower, in form and substance reasonably acceptable to the Administrative Agent;
(h) There shall not have occurred a Material Adverse Change;
(i) The Lenders shall have received such documents and other instruments as are customary for transactions of this type or as they or their counsel may reasonably request;
(j) The Administrative Agent (or its counsel) shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate a responsible 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting relating to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;USA Patriot Act; and
(k) The Administrative Agent shall have received certificates of status with respect to each Guarantorbe reasonably satisfied that, each dated within 30 days as of the Closing Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving pro forma effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender GroupLoans made under this Agreement, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary Consolidated Leverage Ratio of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory its Subsidiaries will not exceed 3.00 to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;1.00.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentAgent in its Permitted Discretion, of each of the conditions precedent set forth below; provided that, if all of the conditions set forth in this Section 3.2 are not satisfied as determined by Agent in its Permitted Discretion, on or before the date that is 90 days after the Closing Date, then this Agreement and the other Loan Documents shall be automatically terminated and the Lender Group shall have no further obligations of any kind hereunder or thereunder:
(a) the Closing Activation Date shall occur on or before July 31, 2002the date occurring ninety (90) days after the Closing Date;
(b) Each of the conditions set forth in Section 3.1 shall have been and continue at all times to be satisfied and Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside received a certificate of the ordinary course chief executive officer of business) Parent dated as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by Activation Date stating the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentsame;
(c) Agent shall have completed a takeover audit of Borrowers by the Activation Date, the results of which shall be satisfactory to Agent in its Permitted Discretion.
(d) Agent shall have received all financing statements required by Agent, duly authorized for filing by the applicable Guarantors, and Agent shall have received searches reflecting the filing of all such financing statements;
(e) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executedexecuted or authorized to be filed, as appropriate, and each such document shall be in full force and effect:
(i) the Control Stock Pledge Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunderthereunder for each Material Subsidiary of any Borrower except as provided in Section 6.17, as well as Stock powers with respect thereto endorsed in blank, or ,
(2ii) the written acknowledgment, Trademark Security Agreements,
(iii) the Share Mortgage together with all share certificates and executed transfers in form blank in respect of all shares charged by it and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control the Guarantee and Debenture,
(iv) the Control Agreements,
(v) the Cash Management Agreements together with verifications of the items described in clause balances of the Cash Management Accounts subject thereto as of the day prior to the Activation Date, it being acknowledged and agreed by Borrowers that, as an additional condition to the day prior to the Activation Date, as of the Activation Date not less that $15,000,000 of Borrowers' cash shall be subject to Control Agreements (1) above and holds, or is causing to be held, same for the benefit of Agent;including Cash Management Agreements),
(dvi) Agent shall have received a certificate from UCC termination statements and other documentation evidencing the Secretary termination by any prior secured parties of each Borrower attesting their respective Liens in and to the resolutions properties and assets of such Borrower's Board of Directors authorizing its execution, delivery, Borrowers and performance of this Agreement each Guarantor,
(vii) the Guaranties and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;Subsidiary Documents,
(eviii) Collateral Access Agreements from all lessors of Real Property where any Borrower maintains its Chief Executive Office and Equipment maintaining Books and Records or keeps its Books and Records for its business or operations (other than HH UK),
(ix) Collateral Access Agreements in favor of Agent shall have received copies from all of each Borrower's Governing Borrowers' information technology lessors,
(x) the Australian Security Documents, as amended, modified, or supplemented to and
(xi) the Closing Date, certified by the Secretary of such BorrowerCanadian Security Documents;
(f) Agent shall have received a certificate of status completed reference checks with respect to each BorrowerBorrowers' senior management, dated within 10 days the results of the Closing Date, such certificate which are satisfactory to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is Agent in good standing in such jurisdictionits sole discretion;
(g) Agent shall have received certificates a certificate of status insurance, together with respect the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to each 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 such Borrower) 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 jurisdictionsAgent;
(h) Agent shall have received a certificate from the Secretary or Assistant Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Activation Date, certified by the Secretary or Assistant Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Activation Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Activation Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate additional opinions of insurancecounsel to Borrowers (including, together with without limitation, HH Australia and HH Canada) and Guarantors pertaining to such matters as Agent may determine as of the endorsements theretoActivation Date, as are required by Section 6.8, the in form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]Borrowers shall have the Required Availability as of the Activation Date after giving effect to the payment of all costs, fees and expenses then due to Agent and/or any Lender hereunder or under the other Loan Documents and the contemplated initial Advances hereunder;
(n) Agent Borrower shall have received opinions of Borrowers' and Guarantors' counsel deliver to Agent, in form and substance content satisfactory to Agent, which opinions shall include opinions an opening balance sheet as of the effective date of the Spin-Off, reviewed by an independent certified public accountant and in form and content satisfactory to Agent in its Permitted Discretion, together with evidence satisfactory to Agent in its Permitted Discretion that Borrowers and their Subsidiaries have had available cash and Cash Equivalents in an aggregate amount not less than $40,000,000 at some time prior to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesActivation Date;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all UCC, tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, incomelien, and franchises judgment searches for all domestic jurisdictions (including Real Property taxesand the non-domestic equivalents of such searches including, gaming taxeswithout limitation, the PPSA except as provided in Section 3.5(c)) in which Borrower and payroll taxes) have been paid prior each Guarantor and Collateral may be located, the results of which searches show the recording of Agent's security interests and otherwise shall be satisfactory to delinquency, except such taxes that are the subject of a Agent in its Permitted ProtestDiscretion;
(p) Borrowers The TMP Loan Agreement and the Security Agreement between Parent and TMP entered into in contemplation of the Spin-Off shall have the Required Availability after giving effect been terminated, all obligations to the initial extensions of credit hereunderTMP thereunder shall have been indefeasibly paid and satisfied in full and all liens granted thereunder shall have been terminated;
(q) Agent Borrowers shall have completed executed and delivered all documents required by Agent and shall have satisfied all other conditions established by Agent in its business Permitted Discretion to cause HH Australia and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties HH Canada to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agentbecome Borrowers hereunder;
(r) Agent shall have received completed reference checks with respect to and reviewed all of Borrowers' senior management, material contracts including without limitation all seller notes payable by a Borrower or any of its Subsidiaries and the results of which are such review shall be satisfactory to Agent in its sole discretionPermitted Discretion;
(s) Agent shall have received evidence, satisfactory to Agent the Consolidation Plan certified by an officer of Parent as true and its counsel, that, except correct as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the GuarantorsActivation Date;
(t) Agent Borrowers shall have received Borrowers' Closing Date Business Plan;delivered to Agent an organizational chart for Borrowers and their Subsidiaries that is true and correct as of the Activation Date,
(u) Borrowers No material adverse change shall pay have occurred in Borrowers' financial condition or prospects or in the value of the Collateral,
(v) No default or event which, with the giving of notice or passage of time, or both, would be a default shall have occurred and be continuing under any agreement governing indebtedness of any Borrower or any other material agreement of any Borrower; and
(w) all Lender Group Expenses incurred other documents and legal matters in connection with the transactions evidenced contemplated by this Agreement;
(v) Agent Agreement shall have received (i) appraisals of the Real Property Collateral satisfactory to Agentbeen delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Highland Group Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31June 14, 2002;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which required by Lender and Lender shall be first priority, subject only to have received searches reflecting the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance reasonably satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentIntercreditor Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountDisbursement Letter, if applicable,
(iii) the Fee LetterSubsidiary Security Agreements,
(iv) the Guarantya Guaranty by each Guarantor,
(v) the Intercompany Subordination Agreement;Acknowledgement,
(vi) the Intercreditor Intellectual Property Security Agreement,
(vii) the IP Security Stock Pledge Agreement,, and
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee any additional documents which may be reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agentrequired by Lender;
(d) Agent 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 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 Lender shall have received a certificate from the Secretary of Borrower or an Authorized Person certifying that:
(i) the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(ii) there does not exist any condition or event that constitutes a Material Adverse Change, Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrower has taken, is taking, or proposes to take with respect thereto).
(f) Lender 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 within 10 days of 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 Lender shall have received certificates of status with respect an opinion from counsel to each Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by Borrower and Guarantors substantially in the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) 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 jurisdictionsform annexed hereto as Exhibit A;
(h) Agent Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent Except as provided, in Section 3.2(e), Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdictionjurisdiction together with a written confirmation of such good standing dated within 10 days of the Closing Date;
(k) Agent Except as provided in Section 3.2(e), Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be reasonably satisfactory to AgentLender;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent Lender shall have received satisfactory evidence (including a certificate of the president or chief financial officer of ParentBorrower) that all material tax returns required to be filed by Borrowers Borrower and each of its Subsidiaries have been timely filed (or an extension obtained with respect thereto) and all taxes shown on such returns, plus any interest, penalties or other charges in respect thereof, that are due and payable upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquencypaid, except such taxes that are the subject of a Permitted Protest;
(pn) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vo) Agent Borrower shall have received (i) appraisals all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the Real Property Collateral satisfactory to Agent, transactions contemplated hereby 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respectthereby;
(wp) Agent Lender shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full a certificate from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of State of the State of Delaware, which certificate shall indicate that Borrower certifying each is in good standing in such document as being a truejurisdiction; and
(q) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, correctexecuted, or recorded and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (New World Restaurant Group Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), hereunder is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31August 20, 20022003;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing duly executed by Agent, to have priority over Agent's Liens)Borrower, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documentsFee Letter, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;
(d) Agent Lender shall have received a certificate from the Secretary of each Borrower (i) 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 samesame and (ii) certifying the names and the signatures of the officers of Borrower authorized to sign the Loan Documents;
(e) Agent Lender shall have received copies of each Borrower's Governing Documents, as if amended, modified, or supplemented subsequent to the Original Closing Date, certified by the Secretary of such Borrower or a written representation by the Secretary of Borrower that there have been no changes to Borrower's Governing Documents;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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[Intentionally Omitted];
(g) Agent shall have received certificates of status with respect to each 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 such Borrower) 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[Intentionally Omitted];
(h) Agent Lender shall have received a certificate from the Secretary an opinion of each Guarantor attesting to the resolutions of such GuarantorBorrower's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(oi) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunderAvailability;
(qj) Agent no Default or Event of Default shall have completed its business occurred and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to be continuing under the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentOriginal Loan Agreement;
(rk) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vl) Agent 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, Lender, or any of their Affiliates;
(m) Borrower shall have received (i) appraisals all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the Real Property Collateral satisfactory to Agenttransactions contemplated hereby and thereby;
(n) Lender shall have received from Borrower all schedules required by this Agreement updated through and including the Closing Date;
(o) Lender shall have received all fees due and payable under the Fee Letter on the Closing Date; and
(p) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) satisfaction of the Closing Date shall occur on or before July 31, 2002conditions precedent set forth in Section 3.1 above;
(b) Agent Parent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priorityreceived the proceeds of the Senior Notes in an amount sufficient, subject only to together with the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged equity investment by ValueAct Capital in writing by AgentSeitel Holdings and Borrowers’ and their Subsidiaries’ cash on hand, to have priority over Agent's Liens)fully redeem and cancel the Existing Notes tendered for payment and to pay all merger consideration for the Acquisition and evidence thereof, and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance reasonably satisfactory to AgentLender, or (z) as otherwise agreed in writing by Agentshall have been delivered to Lender;
(c) Agent The Existing Notes tendered for payment shall have been fully redeemed and cancelled;
(d) The Acquisition shall have been consummated and evidence thereof, reasonably satisfactory to Lender, shall have been delivered to Lender;
(e) Borrowers shall have Excess Availability of $20,000,000.00 on the Closing Date immediately after giving effect to the Acquisition and Lender shall have received each of evidence thereof, reasonably satisfactory to Lender;
(f) Lender shall have received the following documentsParent Stock Pledge, in form and substance satisfactory to AgentLender in the exercise of its Permitted Discretion, duly executed, and each such document shall be in full force and effect:; and
(ig) Lender shall have received the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunderopinion Dechert LLP, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgmentcounsel to Seitel Holdings, in form and substance satisfactory to Agent, Lender in the exercise of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of 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 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 within 10 days of 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 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 such Borrower) 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 jurisdictionsPermitted Discretion;
(h) Agent the Senior Notes shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented been issued pursuant to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be Offering in form and substance reasonably satisfactory to Lender and its counsel in their Permitted Discretion, (ii) not mature, by their terms until at least 90 days after the Lender Group;
Maturity Date, (yiii) Agent shall have received copies be general unsecured obligations of each Parent, and (iv) be effectively, but not contractually subordinated to all indebtedness and other obligations owing under the Loan Documents to the extent of the FF&E Agreements, together with a Officer's Certificate by the Secretary value of the Borrower certifying each such document as being a true, correct, and complete copy thereof, assets and the same shall be in form other collateral securing the Indebtedness and substance reasonably satisfactory to Obligations under the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Loan Documents
Appears in 1 contract
Samples: Loan and Security Agreement (Matrix Geophysical, Inc.)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder)Initial Advance, is subject to the fulfillment, to the satisfaction of AgentLender (the making of such Initial Advance by Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent:
(a) Lender shall have received a Filing Authorization Letter, duly executed by Borrower, TLOP and Parent, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the Closing Date shall occur on or before July 31opinion of Lender, 2002desirable to perfect the Lender's Liens in and to the Collateral;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Cash Management Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Disbursement Letter for the Initial Advance,
(iv) the Fee Letter,
(ivv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor AgreementPledge Agreements,
(vii) the IP Security Agreement,a Subordination Agreement from each holder of Subordinated Debt (including Parent and TLOP), and copies of all documents evidencing or governing all Subordinated Debt, and
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Servicing Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;
(dc) Agent Lender shall have received a certificate from the Secretary of each Borrower Parent (i) attesting to the resolutions of such BorrowerParent's 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 party, (ii) authorizing specific officers of such Borrower Parent, on behalf of Borrower, to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Parent; LOAN AND SECURITY AGREEMENT - Page 29 --------------------------
(d) Lender shall have received a certificate from the Secretary of Parent (i) attesting to the resolutions of Parent's Board of Directors authorizing Parent's and TLOP's execution, delivery, and performance of the Loan Documents to which each is a party, (ii) authorizing specific officers of Parent to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Parent;
(e) Agent Lender shall have received copies of each Borrower's, Parent's and TLOP's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borroweran Authorized Person;
(f) Agent Lender shall have received a certificate certificates of status with respect to each Borrower, Parent and TLOP, each dated within 10 days of the Closing Date, such certificate certificates to be issued by the appropriate officer officers of the jurisdiction of organization of such Borrower, TLOP and Parent, as applicable, which certificate certificates shall indicate that such Borrower each of Borrower, TLOP and Parent, as applicable, is in good standing in such jurisdictionjurisdictions;
(g) Agent Lender shall have received certificates of status with respect to each Borrower, TLOP and Parent, 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 such BorrowerBorrower and Parent) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower each of Borrower, TLOP and Parent, as applicable, is in good standing in such jurisdictions;
(h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mi) [intentionally omitted]
(n) Agent Lender shall have received opinions a Collateral Access Agreement with respect to the chief executive office of Borrowers' and Guarantors' Borrower;
(j) Lender shall have received an opinion of Borrower's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(ok) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Parentan Authorized Person) that all tax returns required to be filed by Borrowers Parent, TLOP, Borrower and its Subsidiaries have been timely filed and all taxes upon Borrowers Parent, TLOP, Borrower or their Subsidiaries' properties, assets, income, and franchises (including Real Property taxes, gaming sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pl) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit audit, field exam and review of BorrowersBorrower's and its Subsidiaries' books and records Books and verification of Borrowers' Borrower's representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(rm) Agent Lender shall have received completed reference checks with respect to Borrowers' senior managementeach of the Guarantors, the results of which are satisfactory to Agent Lender in its sole discretion;; LOAN AND SECURITY AGREEMENT - Page 30 --------------------------
(sn) Agent Lender shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Borrower's Closing Date Business Plan;
(uo) Borrowers Lender shall have received and approved Borrower's Required Procedures;
(p) Borrower shall have paid or shall pay with the Initial Advance all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vq) Agent Lender shall have received (i) appraisals evidence satisfactory to Lender that, as of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectivelyClosing Date, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear sum of all defects and encumbrances except Permitted LiensParent's stockholder's equity plus Subordinated Debt is not less than $6,000,000.00, and the Mortgage Policies otherwise sum of Borrower's member's equity plus Borrower's Subordinated Debt owing to Parent is not less than $3,250,000;
(r) Lender shall have received evidence satisfactory to Lender that Borrower holds a currently effective license authorizing Borrower to purchase receivables from account debtors residing in New Jersey and to conduct its business as contemplated by this Agreement;
(s) 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 execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; and
(t) 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; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Velocity Asset Management Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July December 31, 2002;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agentthis Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(viii) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreementeach Validity Guaranty,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(Aiv) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b)Parent Pledge Agreements, either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgmenteach duly executed, in form and substance satisfactory to AgentLender,
(v) the Servicing Agreement,
(vi) the Collateral Assignment of Servicing Agreement, of a bailee reasonably acceptable acknowledged by Servicer,
(vii) the Required Procedures,
(viii) Borrower's Closing Date Business Plan;
(ix) the Collection Account Agreement,
(x) the Collateral Agency Agreement, LOAN AND SECURITY AGREEMENT - Page 36 DALLAS2 939606V9 53877-00012
(xi) the Control Agreements,
(xii) the Hazardous Substances Indemnity Agreement,
(xiii) with respect to Agent that all Real Property, the following, in each case with respect to such bailee is Real Property and in possession or control of form and substance satisfactory to the items described in clause Lender: (1) above and holdsa Mortgage, in proper form for recording in the jurisdiction in which such Real Property is located, (2) a fully paid mortgagee's policy of title insurance, or is causing commitment to issue same, issued by an insurer acceptable to Lender and insuring the Lien of such Mortgage as a valid and enforceable, first priority Lien in an amount not less than the fair market value thereof, and subject to no encumbrances other than those, if any, as may be heldacceptable to Lender in its sole discretion, same for (3) an environmental site assessment report, prepared by a credentialed environmental consultant acceptable to the benefit Lender, (4) a boundary survey, certified to the Lender and prepared by a surveyor acceptable to the Lender, and (5) such other information, documentation, opinions, and certifications with respect to any such parcel of AgentReal Property as may be reasonably requested by the Lender;
(dxiv) Agent shall have received a certificate from copies of the Secretary Governing Documents of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its executionObligated Party, deliveryK-W Properties and Servicer, 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 in each Borrower's Governing Documents, case as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrowerits secretary or other Authorized Person acceptable to Lender;
(fxv) Agent shall have received a certificate from the secretary of each Obligated Party, K-W Properties and the sole member of Servicer, respectively, attesting to the resolutions of its Board of Directors authorizing its execution, delivery, and performance (or in the case of the sole member of Servicer, Servicer's execution, delivery and performance) of the Loan Documents to which it is a party and authorizing specific officers to execute the same;
(xvi) a certificate of status with respect to each BorrowerObligated Party, K-W Properties and Servicer, respectively, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the its jurisdiction of organization of such Borrowerorganization, which certificate shall indicate that such Borrower it is in good standing in such jurisdiction;
(gxvii) Agent shall have received certificates of status with respect to each BorrowerObligated Party, K-W Properties and Servicer, respectively, each dated within 30 10 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions states of each jurisdiction (other than the its jurisdiction of organization of such Borrowerorganization) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower it is in good standing in such jurisdictions;
(hxviii) Agent shall have received a certificate from releases and terminations of all security interests, liens and encumbrances on the Secretary of each Guarantor attesting to the resolutions of Collateral, together such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;UCC-3 termination or partial release statements in connection therewith as may be required by Lender; LOAN AND SECURITY AGREEMENT - Page 37 DALLAS2 939606V9 53877-00012
(ixix) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mxx) [intentionally omitted]Borrower consents and agrees that Lender or Lender's representatives or agents may enter onto any premises where any of Borrower's Collateral is located at any time to inspect the Collateral, or to take possession of or remove any or all of the Collateral from such premises or to exhibit for sale and/or conduct one or more sales of the Collateral on such premises, and Borrower will not in any manner hinder, interfere, or prevent any of the foregoing;
(nxxi) Agent shall have received opinions an opinion of Borrowers' Borrower's and Guarantors' Parent's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to Lender; and
(xxii) the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesClosing Certificate;
(oc) Agent Lender shall have filed all financing statements as required to perfect its security interest in the Personal Property Collateral, and shall have received searches, or other evidence satisfactory to Lender, reflecting the filing thereof;
(d) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers Borrower or Parent have been timely filed and all taxes upon Borrowers Borrower or Parent or their respective properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pe) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's and Parent's books and records and verification of Borrowers' Borrower's and Parent's representations and warranties to Lender under the Lender GroupLoan Documents, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(rf) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(sg) Agent Each Obligated Party shall have received evidenceall licenses, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents approvals or approvals of, given all necessary notices to, and taken all evidence of other necessary actions required by, each applicable Gaming by any Governmental Authority relative to in connection with the execution, delivery, execution and performance delivery of the Loan Documents by to which it is a party or in connection with the Borrowers consummation of the transactions contemplated hereby and the Guarantorsthereby;
(th) Agent Parent shall have received Borrowers' Closing Date Business Planall licenses, approvals or evidence of other actions required by any Governmental Authority in connection with lawfully performing its functions and duties as Servicer;
(ui) Borrowers Borrower's and Servicer's reporting systems shall pay be satisfactory to Lender; LOAN AND SECURITY AGREEMENT - Page 38 DALLAS2 939606V9 53877-00012
(j) Lender shall have received interim financial statements for Parent for the nine month period ending September 30, 2002, in form and substance satisfactory to Lender;
(k) Lender shall have received financial information in respect of Guarantor and personal financial information for each Validity Guarantor, in each case form and substance satisfactory to Lender;
(l) Borrower's capital structure shall be satisfactory to Lender including, without limitation, stockholders equity (including paid in capital and retained earnings) in an aggregate amount not less than $1,100,000;
(m) Borrower shall have implemented procedures satisfactory to Lender that will insure proper cut-off and reconciliation as of each month between the accounts receivable aging report, general ledger and client summary reports; and
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent ; and all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have received (i) appraisals of the Real Property Collateral satisfactory to Agentbeen delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31November 26, 20022003;
(b) Agent Lender shall have lien searches (i) reflecting effective filed all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing duly authorized by Agent, to have priority over Agent's Liens)Borrower, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentTrademark Security Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountBOA Repurchase Agreement,
(iii) the Fee Disbursement Letter,
(iv) the GuarantyPay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower,
(v) the Intercompany Subordination Agreement;Perfection Certificate,
(vi) the Intercreditor Agreement,Due Diligence Letter, and
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except a Compliance Certificate dated as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Closing Date and satisfying the conditions of Section 3.3(b6.3(a)(iii), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;
(d) Agent On the Closing Date, Borrower shall have an Excess Availability of at least $2,000,000 after giving effect to the initial extensions of credit hereunder;
(e) 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 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 Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 , provided, that such certificate for the State of New Jersey may indicate that annual reports for the years 2000 and 2001 are outstanding so long as Borrower shall have received delivered to Lender evidence satisfactory to Lender that Borrower has duly completed and filed a certificate from New Jersey Corporation Business Tax Payment and Annual Report for each such year and has paid the Secretary of each Guarantor attesting fees required in connection therewith to the resolutions State of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the sameNew Jersey;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mj) [intentionally omitted]
(n) Agent Lender shall have received opinions an opinion of Borrowers' and Guarantors' Borrower's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(ok) Agent Lender shall have received a certificate of the chief financial officer of Borrower certifying that Borrower is Solvent as of the Closing Date;
(l) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pm) Borrowers Lender shall have received releases satisfactory to Lender executed by Congress Financial Corporation releasing any security interests that it may have on record against any of Borrower's trademarks in the Required Availability after giving effect to the initial extensions of credit hereunderUnited States Patent and Trademark Office;
(qn) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records and verification of Borrowers' Borrower's representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the Facilitieslocations where Inventory is located, the results of which shall be satisfactory to AgentLender;
(ro) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(sp) Agent Lender shall have received evidencean appraisal of the Net Liquidation Percentage applicable to Borrower's Inventory, the results of which shall be satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the GuarantorsLender;
(tq) Agent Lender shall have received Borrowers' Borrower's Closing Date Business Plan;
(ur) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;; and
(vs) Agent Borrower shall have received (i) appraisals all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the Real Property Collateral satisfactory to Agenttransactions contemplated hereby and thereby; and all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Harvey Electronics Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31June 25, 20022003;
(b) Agent shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing required by Agent, to have priority over Agent's Liens)duly executed or otherwise authorized by Borrower, and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside Agent shall have received evidence satisfactory to it of the ordinary course filing of business) as debtor that are filed in the applicable filing offices with respect to all such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Cash Management Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Disbursement Letter,
(iv) the Due Diligence Letter,
(v) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor AgreementMortgage,
(vii) the IP Security AgreementOfficers' Certificate,
(viii) the Mortgages Patent Security Agreement, along with a collateral assignment agreement with respect to each United States patent owned by Borrower and confirmation (or other evidence reasonably satisfactory to Agent) of the Environmental Indemnities,filing of such collateral assignment agreement with the United States Patent and Trademark Office, and
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Trademark Security Agreement, and (B) except as otherwise provided along with a collateral assignment agreement with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either each United States trademark and tradename owned by Borrower and confirmation (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance other evidence reasonably satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control ) of the items described in clause (1) above filing of such collateral assignment agreement with the United States Patent and holds, or is causing to be held, same for the benefit of AgentTrademark Office;
(d) Agent shall have received a certificate from the Secretary of each Borrower (i) 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 samesame and (ii) certifying the names and true signatures of the officers of Borrower authorized to sign each Loan Document to which it is a party;
(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 within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8SECTION 6.7, the form and substance (including amounts) of which shall be reasonably satisfactory to Agent;
(m) [intentionally omitted]
(ni) Agent shall have received opinions Collateral Access Agreements with respect to each of Borrowers' and Guarantors' the locations leased by Borrower set forth on SCHEDULE 3.1(I);
(j) Agent shall have received an opinion of Borrower's counsel in form and substance reasonably satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(ok) Agent shall have received evidence reasonably satisfactory evidence to it (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pl) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(qm) Agent shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records and verification of Borrowers' Borrower's representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, and (ii) an inspection of each of the Facilitieslocations where Inventory is located, the results of which shall be reasonably satisfactory to Agent, (iii) a review of all Material Contracts, (iv) a review of all substantive documents to be executed in connection with any Approved Acquisitions to the extent such documents exist (even if only in draft form) prior to the Closing Date, and (v) receipt and review of an Enterprise Value of Borrower, the results of which shall be reasonably satisfactory to Lender Group;
(rn) Agent shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are reasonably satisfactory to Agent in its sole discretion;
(so) Agent shall have received evidencean appraisal of the Net Liquidation Percentage applicable to Borrower's Inventory and an appraisal of Borrower's Equipment, the results of which shall be reasonably satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the GuarantorsAgent;
(tp) Agent shall have received Borrowers' Closing Date Business PlanBorrower's financial projections, together with a certificate of the chief financial officer of Borrower stating, on behalf of Borrower, that the financial projections have been prepared on a reasonable basis and in good faith and are based on reasonable assumptions and the best information available;
(uq) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vr) Agent shall have received (i) appraisals of the Eligible Real Property Collateral satisfactory to Agent, and (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Eligible Real Property Collateral issued by a title insurance company reasonably satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(ws) Agent shall have received evidencea phase-I environmental report and a real estate survey with respect to each parcel composing the Eligible Real Property Collateral; the environmental consultants and surveyors retained for such reports or surveys, satisfactory the scope of the reports or surveys, and the results thereof shall be reasonably acceptable to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(xt) Agent shall have received copies of each Material Contract, each of the material Senior Note Documentswhich shall be reasonably satisfactory to Agent, together with a Officer's Certificate by the Secretary certificate of the an officer of Borrower certifying certifying, on behalf of Borrower, that each such document as being a true, correct, and complete copy thereof;
(u) Borrower shall have (i) received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the Eligible Real Property Collateral, the plasma collection centers, the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby and (ii) delivered copies of each such document to Agent, together with a certificate of Borrower stating that no other license, approval or any other actions required by any Governmental Authority is necessary in order for the operation of Borrower's business;
(v) Agent shall have received a certificate from the chief executive officer or the chief financial officer of Borrower (or, in the case of the signatures of the Auhtorized Persons of Borrower, the Secretary) certifying, on behalf of Borrower, (i) as to (A) the truth and accuracy of the representations and warranties of Borrower contained in SECTION 5 and (B) the absence of any Default or Events of Default, (ii) that after giving effect to the incurrence of Indebtedness under this Agreement, Borrower is Solvent, and (iii) the same names and true signatures of the Authorized Persons of Borrower;
(w) Agent shall have received a certificate from the chief executive officer or the chief financial officer of Borrower certifying, on behalf of Borrower that there exists no claim, action, suit, investigation, litigation or proceeding, pending or, to the knowledge of Borrower, threatened in any court or before any arbitrator or governmental instrumentality which relates to this Agreement, which is reasonably likely to result in a Material Adverse Change; and
(x) 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 the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Nabi Biopharmaceuticals)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:: -44-
(a) the Closing Date shall occur on or before July March 31, 20022003;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations authorized by the applicable secured party to file executed termination statements or partial release statements in form Borrowers, and substance satisfactory to Agent, or (z) as otherwise agreed in writing by AgentLender shall have received searches reflecting the filing of all such financing statements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Cash Management Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountCopyright Security Agreement,
(iii) the Disbursement Letter,
(iv) the Due Diligence Letter,
(v) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Guarantor Security Agreement,
(vii) the IP Security AgreementGuaranty,
(viii) the Mortgages and the Environmental IndemnitiesIntercompany Subordination Agreement,
(ix) the Representations & Warranties Officers' Certificate,
(Ax) each Stock the Patent Security Agreement,
(xi) the Pay-Off Letter, together with Uniform Commercial Code termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrowers,
(xii) the Securities Pledge Agreement, together with all Pledged Notes and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or and
(2xiii) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentTrademark Security Agreement;
(d) Agent Lender shall have received a certificate from the Secretary of each Borrower (i) attesting to the resolutions of such Borrower's Board board of Directors 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 samesame and (ii) certifying the names and true signatures of the officers of such Borrower authorized to sign each such Loan Document;
(e) Agent Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) in which its failure to be duly qualified or licensed (or, as the case may be, duly incorporated and existing) would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent Lender shall have received a certificate from the Secretary of each Guarantor (i) attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the samesame and (ii) certifying the names and true signatures of the officers of such Guarantor authorized to sign each such Loan Document;
(i) Agent Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(m) [intentionally omitted]Lender shall have received Collateral Access Agreements from the master landlord and the two (2) sublandlords with respect to the following location: 000 Xxxxx Xxxxxx Xxxxx, 11th Floor, Chicago, IL 60606;
(n) Agent Lender shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(o) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtests;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunderhereunder and provided that Borrowers' trade payables are at a level and are aged consistently with Borrowers' historical practices;
(q) Agent Lender and its counsel shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender GroupLender, the results of which shall be reasonably satisfactory to Agent, Lender and (ii) an inspection a review of each all material contracts of Borrowers, including the FacilitiesAOL Agreement, the results of which shall be reasonably satisfactory to AgentLender and its counsel;
(r) Agent Lender shall have received completed reference checks with respect to Borrowers' senior management, the results of which are reasonably satisfactory to Agent Lender in its sole discretion;
(s) Agent Lender shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereofa final appraisal of Borrowers' Recurring Maintenance Revenues, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative results of which shall be consistent with the preliminary appraisal report delivered to the execution, delivery, and performance of the Loan Documents by the Borrowers and the GuarantorsLender;
(t) Agent Borrowers shall have remitted by wire transfer to Lender all cash (and delivered all Cash Equivalents in such manner as directed by Lender) of Borrowers utilized to calculate the Required Availability;
(u) No Material Adverse Change shall have occurred in Borrowers' financial condition or prospects or the value of the Collateral;
(v) Lender shall have received Borrowers' Closing Date Business Plan;unaudited financial statements for the quarter and the fiscal year ended December 31, 2002.
(uw) Borrowers shall pay have paid all Lender Group Expenses incurred on or before the Closing Date in connection with the transactions evidenced by this Agreement;
(vx) Agent Lender shall have conducted Uniform Commercial Code, tax lien and litigation searches, the results of which shall be satisfactory to Lender;
(y) Lender shall have received (i) appraisals of the Real Property Collateral satisfactory to Agentevidence that all Liens created by Borrowers and Restricted Subsidiaries, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except other than Permitted Liens, have been discharged and -47- shall have received an acknowledgement copy of the Mortgage Policies otherwise filings of such discharge, in each case satisfactory to Lender;
(z) Lender shall be satisfied with the takeover audit, which shall include expanded reviews of deferred revenues, accrued liabilities and unapplied cash;
(aa) Lender shall have received satisfactory evidence that not less than the Required Library of all existing Copyrights of Borrowers have been registered with the United States Copyright Office (or any similar office of any other jurisdiction in which Copyrights are used), and that all such Copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement;
(bb) Borrowers shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrowers of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(cc) 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; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation obligations of Lender on the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder)Closing Date, is are subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth belowbelow (unless provided on such later date stated in Section 6.23:
(a) the Closing Date shall occur on or before July 31, 2002;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent Lender shall have received this Agreement and each of the following documentsother Financing Documents, in form and substance satisfactory to AgentLender, duly executedexecuted by each Person party thereto, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required and no Default or Event of Default shall exist as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order execution of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreementsuch documents;
(vib) Lender shall have received confirmation that the Intercreditor Agreement,Security Documents (to the extent applicable) have been registered in the applicable jurisdictions so as to result in perfected of security in all jurisdictions required by the Lender on the Closing Date;
(viic) Lender shall have received the IP Security Agreement,
(viii) Warrants on the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items terms described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentTerm Sheet;
(d) Agent Lender shall have received the applicable fees outlined in Section 2.03(b) together with any other fees contemplated by this Agreement and payable on the Closing Date;
(e) Lender shall have received a payoff letter with respect to the Existing Loan Facility together with all documents as Lender may reasonably require in connection with the payoff of the Existing Loan Facility to evidence the payoff and release of all Liens pursuant to the Existing Loan Facility;
(f) Lender shall have received Collateral Access Agreements for the Borrower’s Mississauga, Ontario location;
(g) Lender shall have received a certificate from the Secretary an officer of each Borrower Loan Party attesting to (i) the resolutions of such Borrower's Loan Party’s applicable Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Financing Documents to which such Borrower it is a party and authorizing specific officers party, (ii) the resolutions of such Borrower Loan Party’s stockholders, shareholders or members, as applicable, to execute the same;
(e) Agent shall have received copies of each Borrower's extent required pursuant to such Loan Party’s Governing Documents, as amended, modified, or supplemented to the Closing Date(iii) such Loan Party’s Governing Documents, certified by the Secretary applicable jurisdiction of organization, and (iv) to the extent applicable in the relevant jurisdiction of incorporation, incumbency of the officers of such BorrowerLoan Party;
(fh) Agent to the extent applicable in the relevant jurisdiction of incorporation, Lender shall have received a certificate of status existence or good standing (or equivalent) with respect to each BorrowerLoan Party, dated within 10 days of 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 the good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each 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 applicable jurisdiction of organization of such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the sameorganization;
(i) Agent Lender shall have received copies of each Guarantor's Governing Documentsthe Budget, together with such financial statements as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such GuarantorLender may require;
(j) Agent Lender shall have received a certificate legal opinion letter of status with respect to each Guarantor, dated within 10 days (i) Borrower’s counsel in Canada and the United States of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdictionAmerica;
(k) Agent Each of the Loan Parties shall have received certificates all licenses, approvals, consents or evidence of status other actions required by any Person in connection with respect to each Guarantor, each dated within 30 days the execution and delivery by such Loan Party of this Agreement or any other Financing Document or with the consummation of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictionstransactions contemplated hereby and thereby;
(l) Agent Lender shall have received a certificate one or more certificates of insurance, together with the endorsements thereto, as are required by Section 6.86.08, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(m) [intentionally omitted]No action, suit, investigation, litigation or proceeding before any arbitrator or Tribunal that could reasonably be expected to have a Material Adverse Effect if adversely determined shall be pending or threatened against any Loan Party or any Subsidiary;
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal Collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(so) Agent No Material Adverse Effect shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantorsoccurred;
(tp) Agent The Borrower’s Deposit Account and operating Account with the Lender shall have received Borrowers' Closing Date Business Planbeen opened;
(uq) Borrowers No Material Adverse Change shall pay have occurred since the date of the Term Sheet.
(r) The Loan Parties shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;; and
(vs) Agent All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have received (i) appraisals of the Real Property Collateral satisfactory to Agentbeen delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentAgent in its Permitted Discretion, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31September 29, 20022004;
(b) Agent shall have lien searches (i) reflecting effective received appropriate financing statements perfecting on Form UCC-1 and PPSA registration statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect Agent's Liens (which shall be first priority, subject only in and to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to Collateral and Agent shall have priority over Agent's Liens), and (ii) listing 73 received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing and PPSA registration statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance otherwise satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to AgentAgent in its Permitted Discretion, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agentthis Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountCanadian Security Documents,
(iii) the Guaranty,
(iv) the Control Agreements,
(v) the Credit Card Agreements,
(vi) the Disbursement Letter,
(vii) the Due Diligence Letter,
(viii) the Fee Letter,
(ivix) the GuarantyNotes,
(vx) the Intercompany Subordination Agreement;
(vi) Pay-Off Letter, together with UCC termination statements and other documentation evidencing the Intercreditor Agreementtermination by Existing Lenders of their Liens in and to the properties and assets of Borrowers and their Subsidiaries,
(viixi) the IP Security Agreement,Eligible Drafts as required pursuant to Section 2.11(c), and
(viiixii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing additional documents required to be held, same for the benefit of Agentdetermined;
(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 within 10 days of 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;; 74
(g) Agent shall have received certificates of status with respect to each 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.86.7, the form and substance (including amounts) of which shall be satisfactory to Agent;
(mi) [intentionally omitted]Agent shall have received Collateral Access Agreements with respect to each warehouse, distribution center, fulfillment center, contract warehouse or other real property (other than a retail store location) leased by a Borrower;
(nj) Agent shall have received opinions from each of Borrowers' U.S. and Guarantors' Canadian counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pk) Borrowers shall have the Required received a Borrowing Base Certificate demonstrating Availability in an amount no less than $10,000,000 after giving effect to the initial extensions of credit hereunderhereunder and the payment of all fees and expenses required to be paid by Borrowers on the Closing Date under this Agreement or the other Loan Documents;
(ql) Agent shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilitieslocations selected by Agent where Borrowers' and their Subsidiaries' Inventory is located, the results of which shall be satisfactory to Agent;
(rm) Agent shall have received completed reference checks with respect an appraisal of the Net Retail Liquidation Value and Net Liquidation Percentage applicable to Borrowers' senior managementand their Subsidiaries' Inventory, the results of which are shall be satisfactory to Agent in its sole discretionAgent;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(tn) Agent shall have received Borrowers' Closing Date Business Plan;
(uo) Borrowers shall pay have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vp) [Reserved];
(q) Agent shall have received (i) appraisals evidence satisfactory in Agent's Permitted Discretion that Borrowers have received all consents, all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrowers or their Subsidiaries of this Agreement or any other Loan Document or with the consummation of the Real Property Collateral satisfactory to Agenttransactions contemplated hereby and thereby; and 75
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31January 23, 20022003;
(b) Agent shall have lien searches (i) reflecting effective received and filed all financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing and PPSA registration statements required by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower duly executed or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired otherwise authorized by Borrower or any Guarantor, and Agent shall have received evidence reflecting the filing of all such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by AgentPPSA registration statements;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Cash Management Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Canadian Guaranty,
(iv) the Canadian Security Agreement,
(v) the Contribution Agreement,
(vi) the Disbursement Letter,
(vii) the Due Diligence Letter,
(viii) the Fee Letter,
(ivix) the GuarantyMortgages,
(vx) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Officers' Certificate,
(Axi) each Stock the UCC/PPSA Filing Authorization Letter,
(xii) the Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank and all promissory notes pledged thereunder as well as allonges with respect thereto endorsed in blank, or and
(2xiii) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentIntercreditor Agreement;
(d) Agent shall have received a certificate from the Secretary of each Borrower (i) 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 samesame and (ii) certifying the names and true signatures of the officers of Borrower authorized to sign each Loan Document to which Borrower is a party;
(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 within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor (i) attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the samesame and (ii) certifying the names and true signatures of the officers of such Guarantor authorized to sign each Loan Document to which such Guarantor is a party;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each GuarantorGuarantor (other than Eastside Coal Company, Inc.), dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8SECTION 6.7, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted];
(n) Agent shall have received opinions an opinion of Borrowers' and Guarantorsthe Loan Parties' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records and verification of Borrowers' Borrower's representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection environmental reports on the Oil and Gas Properties of each Borrower and Guarantors and (iii) a takeover audit which will include, among other things, a verification that all of Borrower's and Guarantors' production taxes and royalty payments are current, verification of Borrower's and Guarantors' cash balances (including the sources of such cash) and a calculation of the FacilitiesBorrowing Base after updating the two-year NYMEX Strip Price and rolling forward the production volumes of Borrower and Guarantors, in each case the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence(i) Borrower's Closing Date Business Plan, (ii) evidence satisfactory to it that the debt and capital structure of Borrower and its Subsidiaries after giving effect to the Restructuring and the initial Advances under this Agreement, is consistent with the Closing Date Business Plan and the projections of Borrower and its Subsidiaries previously delivered to Agent and (iii) financial reports of Borrower and its counsel, that, except as contemplated by Section 3.3(b) hereof, Subsidiaries for the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative month ending immediately prior to the execution, delivery, and performance of the Loan Documents by the Borrowers and the GuarantorsClosing Date;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vu) Agent shall have received (i) appraisals updated land records and/or title searches and abstracts of Oil and Gas Properties of Borrower and Newco Canada, the Real Property Collateral review of which shall be satisfactory to Agent, and (ii) mortgagee updated title insurance policies opinions of such Oil and Gas Properties with respect to the Hydrocarbon Interests therein of Borrower and Newco Canada and (or marked commitments to issue the sameiii) for the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral Oil and Gas Properties that are valid and enforceable first priority mortgage Liens on such Real Property Collateral Oil and Gas Properties free and clear of all defects and encumbrances except Permitted Liens;
(v) Lenders shall have received the Initial Reserve Report, and the Mortgage Policies otherwise which shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respectLenders;
(w) Agent shall have received evidence, satisfactory evidence verifying all production taxes and royalty payments pertaining to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds well comprising a part of the Notes (as such term is defined in the Indenture) Oil and that all liens in respect thereof have been releasedGas Properties are current;
(x) Agent shall have received satisfactory evidence that the Newco Canada Transfer shall have been consummated in compliance with all applicable laws;
(y) Agent shall have received satisfactory evidence that Borrower shall have consummated the PrimeWest Transaction pursuant to the terms and conditions of the PrimeWest Agreement and in compliance with all applicable laws and no terms or provisions set forth in the PrimeWest Agreement shall have been amended, waived or otherwise modified without the prior written consent of Agent;
(z) the Exchange Offer shall have been consummated pursuant to Borrower's Offer to Exchange, dated December 9, 2002, as amended by Supplement No. 1 to the Exchange Offer dated January 15, 2003, in compliance with all applicable laws and no terms or provisions set forth in such Offer to Exchange shall have been amended, waived or otherwise modified without the prior written consent of Agent;
(aa) Agent shall have received evidence that (i) Borrower shall have deposited funds sufficient to effect a redemption, on terms satisfactory to Agent, of the Firstar Notes not otherwise exchanged or canceled pursuant to the Exchange Offer and shall have effected such redemption of such Firstar Notes in compliance with all applicable laws and pursuant to documents satisfactory to Agent (such redemption, the "FIRSTAR HOLDOVER REDEMPTION") and (ii) immediately upon the deposit of such funds, the trustee of the Firstar Notes shall have terminated, discharged, and released its Liens and mortgages on all of Borrower's and its Subsidiaries' properties and assets and shall have delivered and/or authorized the filing of UCC and PPSA termination statements, discharges or release or mortgages and such other documentation evidencing such termination, discharge and release;
(bb) Borrower shall have entered into the New Notes Indenture, the terms and conditions of which are set forth in Borrower's Offer to Exchange, dated December 9, 2002, as amended by Supplement No. 1 to the Exchange Offer dated January 15, 2003, which New Notes Indenture shall be in compliance with all applicable laws;
(cc) Agent shall have received evidence that (i) Borrower shall have deposited funds sufficient to effect a redemption, on terms satisfactory to Agent, of the Norwest Notes and shall have effected such redemption of the Norwest Notes in compliance with all applicable laws and pursuant to documents satisfactory to Agent (such redemption, the "NORWEST REDEMPTION") and (ii) immediately upon the deposit of such funds, the trustee of the Norwest Notes shall have terminated, discharged and released its Liens and mortgages on all of Borrower's and its Subsidiaries' properties and assets and shall have delivered and/or authorized the filing of UCC and PPSA termination statements, discharges or releases or mortgages and such other documentation evidencing such termination, discharge and release;
(dd) Agent shall have received evidence that Grey Wolf shall have (i) entered into a termination and release agreement with respect to the Grey Wolf Credit Facility and all related documents, duly executed by Grey Wolf and Mirant Canada Energy Capital, Ltd., (ii) repaid in full all Indebtedness under the Grey Wolf Credit Facility, as well as all fees and expenses related thereto and (iii) caused Mirant Canada Energy Capital, Ltd. to terminate, discharge and release its Liens and mortgages on Grey Wolf's properties and assets and shall have delivered and/or authorized the filing of PPSA termination statements, discharges or releases of mortgages and such other documents evidencing such termination, discharges and releases;
(ee) no Material Adverse Change shall have occurred;
(ff) Agent shall have received evidence that Borrower shall have entered into Commodity Hedging Agreements with respect to its Hydrocarbon production with one or more counterparties rated investment grade by Xxxxx'x and Standard & Poor's, or the equivalent by a rating agency acceptable to Agent or with a counterparty otherwise reasonably acceptable to Agent, with the aggregate notional volumes of Hydrocarbons covered by such Commodities Hedging Agreements constituting not less than 25% and not more than 75% of the aggregate amount of Borrower's estimated Hydrocarbon production volumes on an mcf equivalent basis (where one barrel of oil is equal to six mcf of gas) for the succeeding six calendar months after the Closing Date from Oil and Gas Properties classified as Proved -55- Developed Producing Reserves in the Initial Reserve Report plus the estimated production from anticipated drilling by Borrower or its Subsidiaries during such succeeding six months;
(gg) Agent shall have received and reviewed information with respect to all material litigation of Borrower and its Subsidiaries, and shall be satisfied with the results of its review;
(hh) Agent shall have received fully executed copies of each of the material Senior Note DocumentsMaterial Contracts, the New Notes Documents and the agreements, documents or instruments related to the Firstar Holdover Redemption, the Norwest Redemption and the Newco Canada Transfer, together with a Officer's Certificate by the Secretary certificate of the Chief Executive Officer of Borrower certifying each such document as being a true, correct, and complete copy thereofthereof and that such agreements, documents or instruments remain in full force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements;
(ii) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the Restructuring and the same execution and delivery by Borrower and each Guarantor of this Agreement or any other Loan Document or with the consummation of the transactions contemplated by the Restructuring and hereby and thereby; and
(jj) all other documents and legal matters in connection with the transactions contemplated by this Agreement and the Restructuring shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Abraxas Petroleum Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the its initial Advance (or otherwise to extend any extension of credit provided for hereunder), hereunder is subject to the fulfillment, to the satisfaction of AgentAgent and each Lender, of each of the following conditions precedent set forth below:(the making of such initial extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):
(a) The Confirmation Order shall be entered and in full force and effect and shall not have been appealed, stayed, reversed, vacated or otherwise modified (or subject to a motion seeking any of the Closing Date shall occur on or before July 31, 2002foregoing) without the consent of the Required Lenders;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which All documents executed in connection with the implementation of the Plan of Reorganization shall be first priority, subject only to in accordance with the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), Plan of Reorganization and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance reasonably satisfactory to AgentAgent and Required Lenders, or (z) as otherwise agreed in writing by Agentthe Effective Date of the Plan of Reorganization shall have occurred, and the Plan of Reorganization shall have been substantially consummated;
(c) Agent and the Lenders shall have received each of the following documentsdocuments (originals or telecopies (followed promptly by originals)), in form and substance satisfactory to Agentthe Agent and the Required Lenders, duly executedexecuted and delivered, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,this Agreement;
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,Security Agreement;
(iii) the Fee Letter,Subsidiary Guaranty;
(iv) any Real Property Agreements requested by the Guaranty,Lenders;
(v) any Intellectual Property Security Agreements requested by the Intercompany Subordination Agreement;Lenders; and
(vi) any other agreements requested by the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;Lenders.
(d) Agent and the Lenders shall have received evidence that appropriate financing statements have been duly filed in such office or offices as may be necessary or, in the reasonable opinion of Agent, desirable to perfect the Agent’s Liens in and to the Collateral, and all Liens created pursuant to the Loan Documents shall have been duly perfected and registered in all relevant jurisdictions;
(e) Except as otherwise provided in the Plan of Reorganization, all Indebtedness of the Loan Parties shall have been discharged or subordinated to the Indebtedness to the Lenders under this Agreement on terms and conditions satisfactory to Required Lenders;
(f) The Agent and the Lenders shall have received all requested financial information regarding the Loan Parties in form, scope and substance acceptable to Agent and the Required Lenders;
(g) Agent and the Lenders shall have received a certificate from the Secretary of each Borrower Loan Parties (i) attesting to the resolutions of such Borrower's Loan Party’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 within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors Managers authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor it is a party and authorizing specific officers of such Guarantor Loan Party to execute the same, and (ii) attesting to the incumbency and signatures of the officer(s) of such Loan Party;
(ih) Agent and the Lenders shall have received copies of each Guarantor's Loan Party’s Governing Documents, as amended, modified, or supplemented under the Plan of Reorganization, which Governing Documents shall be (i) certified by an officer or corporate secretary of such Loan Party, and (ii) with respect to Governing Documents that are charter documents, certified as of a recent date (not more than 30 days prior to the Closing Effective Date, certified ) by the Secretary of such Guarantorappropriate governmental official;
(i) Agent and the Lenders shall have received a certificate from the Borrower’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 5.7 is in full force and effect, together with endorsements naming the Agent as additional insured and loss payee thereunder;
(j) [Agent and the Lenders shall have received a certificate an opinion of status with respect the Loan Parties’ counsel as to each Guarantorsuch matters as Agent may reasonably require, dated within 10 days as of the Closing Date, such certificate Date and in form and substance satisfactory to be issued by Agent and the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdictionRequired Lenders];
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business business, financial and legal due diligencediligence of the Loan Parties, including but not limited to (i) review of material agreements, (ii) a collateral audit audit, (iii) UCC, tax lien and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agentlitigation searches, and (iiiv) an inspection of each review of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior managementLoan Parties’ books and records, the results of which are satisfactory to the Agent in its sole discretionand Lenders;
(sl) Agent The Borrower shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay paid all Lender Group Expenses incurred in connection with the transactions evidenced by this AgreementAgreement and the other Loan Documents;
(vm) Agent Each Loan Party shall have received all governmental and third party approvals (iincluding shareholder approvals and other consents) appraisals necessary or, in the reasonable opinion of the Real Property Collateral satisfactory to AgentRequired Lenders, advisable in connection with this Agreement, the transactions contemplated by the Loan Documents, which shall all be in full force and effect, and (ii) mortgagee title insurance policies (all applicable waiting periods shall have expired without any action being taken or marked commitments to issue the same) for the Real Property Collateral issued threatened by a title insurance company satisfactory to Agent (each a "Mortgage Policy" andany competent authority which would restrain, collectivelyprevent or otherwise impose adverse conditions on this Agreement, the "Mortgage Policies"transactions contemplated by the Loan Documents; and
(n) Nothing shall have occurred (and neither the Agent nor the Lenders shall have become aware of any facts or conditions not previously known) which the Agent or the Lenders shall reasonably determine has had, or could reasonably be expected to have, a Material Adverse Effect;
(o) All other documents and legal matters in amounts satisfactory to Agent assuring Agent that connection with the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, transactions contemplated by this Agreement and the Mortgage Policies otherwise Plan of Reorganization shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Required Lenders.
Appears in 1 contract
Samples: Credit Agreement
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31February 28, 20022004;
(b) Agent shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing required by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations authorized by the applicable secured party to file executed termination statements or partial release statements in form Loan Parties, and substance satisfactory to Agent, or (z) as otherwise agreed in writing by AgentAgent shall have received confirmation of the filing of all such financing statements;
(c) Agent Lenders shall have received each of the following documents, in form and substance satisfactory to AgentLenders, duly executed, and each such document shall be in full force and effect:
(i) the Control Cash Management Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Fee LetterCopyright Security Agreement,
(iv) the GuarantyDisbursement Letter,
(v) the Intercompany Subordination Agreement;Amended and Restated of Guaranty,
(vi) Amended and Restated General Security Agreements securing the Intercreditor Agreementobligations of the Guarantors to the Agent and the Lender Group in form and substance satisfactory to Agent,
(vii) the IP Security AgreementMortgages and any amendments thereto as required by Lender,
(viii) the Mortgages and the Environmental IndemnitiesOfficers' Certificates,
(ix) the Representations & Warranties CertificatePatent Security Agreement,
(Ax) each the Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or ,
(2xi) the Trademark Security Agreement,
(xii) the Intercompany Subordination Agreement,
(xiii) the Export Credit Agreement and the written acknowledgmentapproval by EXIM of the transactions contemplated hereunder,
(xiv) Collateral Assignments of the Xxxxxxx Note and the Ruud Notes, together with the originals of such Xxxxxxx Note and Ruud Notes,
(xv) Collateral Assignments of the notes evidencing the Canadian Intercompany Loan and the UK Intercompany Loan, and
(xvi) the original key man life insurance policy and Absolute Assignment of the key man life insurance described in Section 6.8(d);
(d) No trustee, examiner, receiver or the like shall have been appointed or designated with respect to any Borrower or its businesses, properties or assets, including, without limitation, the Collateral and any other property which is security for the Obligations;
(e) Agent shall have received a certified copy of the Confirmation Order which shall conform to the Plan in all respects and shall include provisions affecting this Agreement and the other Loan Documents and the transactions contemplated hereunder and thereunder as Agent may request, which Confirmation Order shall have been entered by the Bankruptcy Court after due notice to all creditors and other parties-in-interest, shall not have been stayed by the Bankruptcy Court (or by any other court of competent jurisdiction) or reversed, vacated, amended, supplemented or modified in any respect, and the time to appeal the Confirmation Order shall have expired, no appeal or petition for review, rehearing or certiorari with respect to the Confirmation Order shall be pending and the Confirmation Order shall be in full force and effect.
(f) To the extent that the Plan is confirmed by the Bankruptcy Court, Agent shall have received evidence, in form and substance content satisfactory to Agent, of a bailee reasonably acceptable that prior to Agent that such bailee is in possession the date hereof or control of concurrently herewith the items described in clause (1) above Effective Date shall have occurred and holds, or is causing to be held, same for the benefit of AgentPlan has been Substantially Consummated;
(dg) Agent shall have received a certificate from the Secretary of each Borrower Loan Party (i) attesting to the resolutions of such BorrowerLoan Party's Board board of Directors directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower Loan Party is a party and authorizing specific officers of such Borrower Loan Party to execute the samesame and (ii) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which such Loan Party is a party;
(eh) 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;
(fi) Agent shall have received a certificate of status with respect to each Borrower, Borrower dated within 10 days of 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;
(gj) Agent shall have received certificates of status with respect to each 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 such Borrower) 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 shall have received a certificate from the Secretary of each Guarantor (i) attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the samesame and (ii) certifying the names and true signatures of the officers of such Guarantor authorized to sign each Loan Document to which such Guarantor is a party;
(il) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(jm) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(kn) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(lo) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(mp) [intentionally omitted]Agent shall have received Collateral Access Agreements with respect to all locations leased by any Loan Party or owned by any third party and at which Collateral is located as identified on Schedule 5.5;
(nq) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to AgentLenders, which opinions shall include opinions as an opinion regarding the validity and enforceability of Lenders' application of Guarantor Collateral located in Canada and UK to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesObligations;
(or) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers Loan Parties have been timely filed and all taxes upon Borrowers Loan Parties or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtests;
(ps) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(qt) Agent Lenders shall have completed its business their business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to AgentLenders, and (ii) an inspection of each of the Facilitieslocations where Eligible Inventory is located, the results of which shall be satisfactory to Agent, (iii) satisfactory review of perfection and tax lien issues in Canada and the United Kingdom, and (iv) a satisfactory takeover audit of such matters as Agent shall deem appropriate in its sole discretion, including, without limitation, a testing of all eligible Collateral located in the United Kingdom, a review of taxes payable by Borrowers (including excise taxes), insurance, rents, inventory reconciliations, transfer pricing and contra account activity, the Export Borrowing Base and the structure and documentation of the indebtedness owing by DSI to Parent;
(ru) Agent Lenders shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent Lenders in its their sole discretion;
(sv) Agent Lenders shall have received evidencean appraisal of the Net Liquidation Percentage applicable to Borrowers', and Canadian Guarantor's Eligible Inventory and an appraisal of Loan Parties' Equipment, the results of which shall be satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respectLenders;
(w) Agent Lenders shall have received evidencethe Plan, satisfactory to Agentthe Closing Date Business Plan, that each of (i) and Borrowers' pro forma balance sheet reflecting the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds consummation of the Notes (as such term is defined in transactions hereunder, including without limitation, the Indenture) and that all liens in respect thereof have been releasedtransactions under the Plan;
(x) Agent shall have received copies The capitalization and capital structure of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, Borrowers and the same subsidiaries of Borrowers shall in all respects be in form and substance reasonably satisfactory to the Lender GroupLenders;
(y) Agent shall have received copies The existing and projected liquidity of each Borrowers and their ability to fund ongoing working capital, the cash management structure, flow of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, funds and complete copy thereof, and the same other cash requirements shall be in form and substance reasonably satisfactory to the Lender GroupLenders;
(zaa) Agent No Material Adverse Change shall have received occurred in Borrowers' business, assets, financial condition, performance or prospects, in the Board value of Directors' designation the Collateral, in the ability of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" Borrowers to operate in accordance with the provisions projections for the period after the Closing Date most recently delivered to Agent prior to the Closing Date, or in the ability of Borrowers to comply with the financial covenants set forth in the definition of "Unrestricted Subsidiary" hereinSection 7.20;
Appears in 1 contract
Samples: Loan and Security Agreement (Advanced Lighting Technologies Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) : the Closing Date shall occur on or before July 31, 2002;
(b) Agent ; Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form Borrowers, and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent Lender shall have received searches reflecting the filing of all such financing statements; Lender shall have received each of the following documents, in the form and substance of which are satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) : Assignment of Life Insurance Policies, the Cash Management Agreements, the Control Agreements, if anythe Disbursement Letter, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) Due Diligence Letter, the Fee Letter,
(iv) , the Guaranty,
(v) , the Guarantor Security Agreement, the Intercompany Subordination Agreement;
(vi) , the Intercreditor Agreement,
(vii) the IP Trademark Security Agreement,
(viii) , the Mortgages Officers' Certificate, the Pay-Off Letter, together with termination statements under the Code and other documentation evidencing the Environmental Indemnities,
(ix) termination by Existing Lender of its Liens in and to the Representations & Warranties Certificate,
(A) each Stock properties and assets of Borrowers, the Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control Borrowing Base Certificate dated as of the items described in clause (1) above Closing Date, and holds, or is causing to be held, same for a Compliance Certificate dated as of the benefit of Agent;
(d) Agent Closing Date; Lender shall have received a certificate from the Secretary 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 ; Lender shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary secretary of such Borrower;
(f) Agent ; Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Dateon or after July 1, 2002, 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 ; Lender shall have received certificates of status with respect to each 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 such Borrower) 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 ; Lender shall have received a certificate from the Secretary secretary of each Guarantor attesting to the resolutions of such Guarantor's Board board of Directors directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent ; Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary secretary of such Guarantor;
(j) Agent ; Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Dateon or after July 1, 2002, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent ; Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent ; Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be are satisfactory to Agent;
Lender; Lender shall have received Collateral Access Agreements with respect to the following locations: (mi) [intentionally omitted]
Borrowers' leased facility in Dalton, Georgia and (nii) Agent the facility operated by Springs Industries, Inc. in Lancaster, South Carolina, together with any consignment financing statement required by Lender with respect to such facility; Lender shall have received opinions of Borrowers' and Guarantors' counsel in counsel, the form and substance of which are satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent Lender; Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, excise taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) ; Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent ; Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' vendors, Equipment and representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the Facilitieslocations where Inventory is located, the results of which shall be satisfactory to Agent;
Lender and (riii) Agent a review of Borrowers' material contracts; Lender shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(s) Agent ; Lender shall have received evidencean appraisal of the Liquidation Percentage applicable to Borrowers' Inventory and an appraisal of Borrowers' Equipment, the results of which shall be satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent Lender; Lender shall have received Borrowers' Closing Date Business Plan;
(u) ; Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent ; Lender shall have received (i) appraisals a phase-I or phase-II environmental report with respect to each parcel of Real Property owned by any Borrower for which such environmental reports have been prepared; the environmental consultants retained for such reports, the scope of the Real Property Collateral satisfactory to Agentreports, 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 Agent (each a "Mortgage Policy" andremediation costs and procedures, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liensif any, and the Mortgage Policies otherwise results thereof shall be in form acceptable to Lender and substance satisfactory to Agentits counsel; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note DocumentsBorrowers' Material Contracts, together with a Officer's Certificate by the Secretary certificate of the secretary of the applicable Borrower certifying each such document as being a true, correct, and complete copy thereof; Borrowers shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrowers of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; Lender shall have received satisfactory evidence that (i) Borrowers' have prepaid the premiums owed through the Maturity Date for each of the Life Insurance Policies, and (ii) that Lender has been named as the same loss payee for each such policy; Lender shall have received satisfactory evidence that Parent has submitted the appropriate documentation to the relevant Governmental Authority to dissolve Synco International, Inc.; and 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 the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Samples: Loan Agreement (Synalloy Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the its initial Advance (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentAgent and each Lender, of each of the following conditions precedent set forth belowprecedent:
(a) Agent shall have received a UCC 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 Closing Date opinion of Agent, desirable to perfect the Agent’s Liens in and to the Collateral, and Agent shall occur on or before July 31, 2002have received searches reflecting the filing of all such financing statements;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentNotes,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountClosing Certificates,
(iii) the Control Agreements with respect to each Deposit Account and Securities Account of the Borrower,
(iv) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Sale and Servicing Agreement;,
(vi) the Intercreditor AgreementCollateral Custodian Fee Letter,
(vii) the IP Security AgreementBack-Up Servicer Engagement Letter,
(viii) a Collateral Access Agreement with respect to the Mortgages principal location(s) where Horizon and Borrower maintain the Environmental Indemnities,Books relating to the Notes Receivable and other Collateral, and
(ix) a file-stamped copy of a UCC-1 financing statement naming Horizon as seller and Borrower as buyer, filed with the Representations & Warranties Certificate,Delaware Secretary of State to perfect the transfer and sale of Notes Receivable to Borrower from time to time pursuant to the Sale and Servicing Agreement.
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;
(dc) Agent shall have received a perfection certificate from the Secretary with respect to Horizon, Horizon Management and Borrower, duly executed by an Authorized Officer of each Borrower attesting to the resolutions of such Horizon, Horizon Management and 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 the results of a recent lien search in each Borrower's Governing Documentsof the jurisdictions indicated on such perfection certificate, as amended, modified, and such search shall reveal no liens on any of the assets of Borrower except for liens permitted by Section 7.2 or supplemented discharged on or prior to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received Date pursuant to a certificate of status with respect to each Borrower, dated within 10 days of 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 within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (pay-off letter or other than the jurisdiction of organization of such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be documentation satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;
Appears in 1 contract
Samples: Loan and Security Agreement (Horizon Technology Finance Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31October 10, 20022003;
(b) Agent shall have lien searches (i) reflecting effective received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements perfecting on Form UCC-1 duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Agent's Liens (which shall be first priority, subject only in and to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens)Collateral, and (ii) listing Agent shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentAffiliate Subordination Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amountthis Agreement,
(iii) the Fee LetterControl Agreements,
(iv) the GuarantyDisbursement Letter,
(v) (intentionally omitted),
(vi) the Guarantor Security Agreement,
(vii) the Guaranty,
(viii) the Holding Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank,
(ix) the Intercompany Subordination Agreement;,
(vix) the Intercreditor Agreement,
(viixi) the IP Temecula Mortgage,
(xii) (intentionally omitted),
(xiii) the Patent Security Agreement,
(viiixiv) the Mortgages Pay-Off Letter, together with UCC termination statements and other documentation evidencing the Environmental Indemnitiestermination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries (or an agreement by the Existing Agent to deliver such documentation upon receipt of payment in full of the Indebtedness under the Existing Credit Agreement or, in the case of UCC termination statements, authorization for Agent to file UCC termination statements upon receipt of such payment),
(ixxv) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or and
(2xvi) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentTrademark Security Agreement;
(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 within 10 days of 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 within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the state of Illinois and the jurisdiction of organization of such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions an opinion of Borrowers' and Guarantors' Borrower's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(on) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower and its Subsidiaries have been timely filed and all taxes upon Borrowers Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, gaming sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(po) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;[Intentionally Omitted].
(qp) Agent shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's and its Subsidiaries books and records and verification of Borrowers' Borrower's representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilitieslocations where Borrower's and its Subsidiaries' Inventory is located, the results of which shall be satisfactory to Agent;
(rq) Agent shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent in its sole discretion;
(r) Agent shall have received an appraisal of the Liquidation Percentage applicable to Borrower's and its Subsidiaries' Inventory and an appraisal of Borrower's and its Subsidiaries' Equipment, the results of which shall be satisfactory to Agent;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Borrower's Closing Date Business Plan;
(ut) Borrowers Borrower shall pay have paid all Lender Group Expenses incurred and billed in connection with the transactions evidenced by this Agreement;
(vu) Agent shall have received (i) appraisals an appraisal of the Real Property Collateral reasonably satisfactory to Agent, and (ii) a mortgagee title insurance policies policy (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory an amount not to Agent exceed the fair market value of the Real Property Collateral assuring Agent that the Mortgages on such Real Property Collateral are Temecula Mortgage is a valid and enforceable first priority mortgage Liens Lien on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies Policy otherwise shall be in form and substance reasonably satisfactory to Agent;
(v) Agent shall have received a phase-I environmental report with respect to each parcel composing the Real Property Collateral; the environmental consultants retained for such reports, the scope of the reports, and the results thereof shall be reasonably acceptable to Agent;
(w) The Subordinated Convertible Notes shall have been amended or re-issued to extend the maturity date thereof to March 31, 2008, and Agent shall have received copies of such amendments or re-issued notes certified by the chief financial officer of Borrower;
(x) The Senior Notes shall have been amended or re-issued to extend the maturity date thereof to March 31, 2008, and Agent shall have received copies of such amendments or re-issued notes certified by the chief financial officer of Borrower;
(y) The HRC Notes shall have been amended or re-issued to extend the maturity date thereof to March 31, 2008, and Agent shall have received copies of such amendments or re-issued notes certified by the chief financial officer of Borrower;
(z) The agreements governing the Borrower Preferred Stock and the Holding Preferred Stock shall have been amended to extend the period of time within which cash dividends are not paid thereunder in a manner satisfactory to Agent, and Agent shall have received copies of such amendments certified by the chief financial officer of Borrower;
(aa) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Govern mentalAuthority in connection with the execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby;
(bb) The conditions to the initial extension of credit set forth in Section 3.1 of the WFF Loan Agreement shall have been satisfied, and the lenders under the WFF Loan Agreement shall have concurrently funded the initial loans thereunder; and
(cc) 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; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Respiratory Care Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31April 30, 20022003;
(b) Agent Lender shall have lien searches (i) reflecting effective received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements perfecting Agenton Form UCC-1 duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender's Liens (which shall be first priority, subject only in and to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens)Collateral, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Cash Management Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Disbursement Letter,
(iv) the Due Diligence Letter,
(v) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Guarantor Security Agreement,
(vii) the IP Security AgreementGuaranty,
(viii) the Mortgages and the Environmental IndemnitiesIntercompany Subordination Agreement,
(ix) the Representations & Warranties Perfection Certificate,
(Ax) each the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries,
(xi) the Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or and
(2xii) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentTrademark Security Agreement;
(d) Agent 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 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 Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(m) [intentionally omitted]Lender shall have received a Collateral Access Agreement with respect to all locations in which Inventory is held by a bailee, warehouseman or other similar Person, other than Inventory located at the Xxxxxxx Xxxx Warehouse Facility.
(n) Agent Lender shall have received opinions an opinion of Borrowers' and Guarantors' Borrower's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(o) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower and its Subsidiaries have been timely filed and all taxes upon Borrowers Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, gaming sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunderhereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's and its Subsidiaries books and records and verification of Borrowers' Borrower's representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the Facilitieslocations where Borrower's and its Subsidiaries' Inventory is located, the results of which shall be satisfactory to AgentLender;
(r) Agent Lender shall have received completed reference checks with respect an appraisal of Borrower's Inventory showing the Net Liquidation Percentage applicable to Borrowers' senior managementsuch Inventory, the results of which are shall be satisfactory to Agent in its sole discretionLender;
(s) Agent Lender shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vt) Agent Borrower and each of its Subsidiaries shall have received (i) appraisals all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Real Property Collateral satisfactory Loan Documents or with the consummation of the transactions contemplated thereby;
(u) Borrower shall have executed and delivered to Agent, Lender documentation suitable for recording with the United States Patent and (ii) mortgagee title insurance policies (or marked commitments to issue the same) Trademark Office providing for the Real Property Collateral issued name change from Shoe Inn, Inc. to Shoe Pavilion Corporation with respect to federal trademark registrations no. 2,130,383 and 1,670,905; and
(v) all other documents and legal matters in connection with the transactions contemplated by a title insurance company satisfactory to Agent (each a "Mortgage Policy" andthis Agreement shall have been delivered, collectivelyexecuted, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid or recorded and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender (the making of such initial extension of credit by Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent:
(a) the Closing Date shall occur on or before July 31June 30, 20022004;
(b) Agent Lender shall have lien searches (i) reflecting effective received appropriate financing statements perfecting Agentto be duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender's Liens (which shall be first priority, subject only in and to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by AgentCollateral;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Cash Management Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountControl Agreements,
(iii) the Disbursement Letter,
(iv) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Patent Security Agreement;,
(vi) the Intercreditor AgreementPay-Off Letter, together with termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries,
(vii) the IP Trademark Security Agreement,, and
(viii) evidence satisfactory to the Mortgages and Lender that the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect Tulin Note has been amended to shares of Stock provide for an extension of the respective Restricted Subsidiaries under original maturity date thereof (the "Original Maturity Date") to a date which is not prior to six months after the Maturity Date to the extent the Borrower is unable to satisfy the Availability criteria set forth in Section 3.3(b), either (17.7(b)(ii) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agenthereof;
(d) Agent Lender shall have received a certificate from the Secretary of each Borrower (i) 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 party, (ii) authorizing specific officers of such Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Borrower;
(e) Agent Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 validly subsisting and/or in good standing in such jurisdiction;
(g) Agent Lender shall have received certificates of status with respect to each 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mi) [intentionally omitted]
(n) Agent Lender shall have received opinions Collateral Access Agreements with respect to the following locations: Borrower's offices in Taunton, Massachusetts; Borrower's retail stores in Lawrenceville, Georgia; Las Vegas, Nevada; Lightfoot, Virginia, Lake George, New York; Niagara Falls, New York; Xxxxxxx Florida, and Xxxxxxx, Xxnnsylvania and Borrower's leased premises in New York, New York;
(j) Lender shall have received an opinion of Borrowers' and Guarantors' Borrower's counsel in form and substance reasonably satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(ok) Agent Lender shall have received satisfactory evidence (including a certificate of the Borrower signed by its chief financial officer of Parentofficer) that all tax returns required to be filed by Borrowers Borrower and its Subsidiaries have been timely filed (after giving effect to any permitted extensions to file) and all taxes upon Borrowers Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, gaming sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pl) Borrowers Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunderhereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents;
(qm) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of BorrowersBorrower's and its Subsidiaries' books and records and verification of Borrowers' Borrower's representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the Facilitieslocations where Borrower's and its Subsidiaries' Inventory is located, the results of which shall be satisfactory to AgentLender; and (iii) a review of all License Agreements, the form and substance of which must be acceptable in all respects to the Lender (including such agreements containing terms sufficient to enable the Lender to sell inventory relating to such License Agreements upon the exercise of Lender's rights and remedies hereunder);
(rn) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(so) Agent Lender shall have received evidencean appraisal of the Liquidation Percentage applicable to Borrower's and its Subsidiaries' Inventory, the results of which shall be satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the GuarantorsLender;
(tp) Agent Lender shall have received Borrowers' Borrower's Closing Date Business Plan;
(uq) Borrowers Borrower shall pay have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vr) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note DocumentsLicense Agreements, together with a Officer's Certificate by certificate of the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof;
(s) 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 execution and delivery by Borrower or its Subsidiaries of the same Loan Documents or with the consummation of the transactions contemplated thereby; and
(t) 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 the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance under this Agreement (or otherwise to extend any credit provided for hereunder), ) is subject to the fulfillment, to the satisfaction of AgentLender (the making of such initial extension of credit by Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the conditions precedent set forth below:
(a) Lender shall have received a UCC 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 Closing Date opinion of Lender, desirable to perfect the Lender’s Liens in and to the Collateral, and Lender shall occur on or before July 31, 2002have received searches reflecting the filing of all such financing statements;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent Lender shall have received each of the following documents, in form and substance reasonably satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) this Agreement;
(ii) the Closing Certificates;
(iii) the Collection Account Agreement and the other Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,;
(iv) the Guaranty,Intercompany Subordination Agreement, together with copies of the executed Intercompany Subordinated Notes and all documents executed in connections therewith;
(v) the Intercompany Subordination Servicing Agreement;; and
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentFortegra Guaranty;
(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;
(e) Agent Lender shall have received copies of each Borrower's ’s and Fortegra’s Governing Documents, as amended, modified, or supplemented to as of the Closing Date, certified by the Secretary, Assistant Secretary or similar officer of such BorrowerPerson;
(fd) Agent Lender shall have received a certificate certificates of status with respect to each BorrowerBorrower and Fortegra, dated within 10 days as of the Closing Datea recent 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 (if applicable) in such jurisdiction;
(ge) Agent shall have received certificates of status with respect to each 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be reasonably satisfactory to AgentLender;
(mf) [intentionally omittedRESERVED]
(ng) Agent Lender shall have received a certificate from an Authorized Financial Person, certifying (i) as to the truth and accuracy in all material respects on and as of the Closing Date of the representations and warranties of Borrower contained in Section 5 of this Agreement, (ii) the absence of any Defaults or Events of Default, and (iii) that after giving effect to the incurrence of Indebtedness under this Agreement and the other transactions contemplated by this Agreement, Borrower is Solvent;
(h) Lender shall have received an opinion or opinions of Borrowers' Borrower’s and Guarantors' Fortegra’s counsel in form and substance reasonably satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(oi) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pj) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a review of the legal structure of Borrower, LOTS, Fortegra and their Affiliates, a collateral audit and review of Borrowers' the books and records of Borrower and any of their Affiliates with business operations similar to those of Borrower, a collateral update review regarding those Premium Finance Agreements that Borrower intends to include as Eligible Premium Finance Agreements on the Borrowing Base Certificate delivered in connection with Lender’s initial Advance, a review of their collateral valuation methods, verification of Borrowers' each of such Person’s representations and warranties to the Lender GroupLender, and verification of third-party service providers, in each case, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(rk) Agent Lender shall have received completed reference checks with respect to Borrowers' senior managementXxxx Xxxxxxxxx, Xxxx Xxxxx, Xxx Xxxxxxx, Xx Xxxxxx, Xxxxxx Xxxxxx, Xxxx Xxxxxxx, Fortegra, LOTS, and Borrower, the results of each of which are satisfactory to Agent Lender in its sole discretion;
(sl) Agent Lender shall have received evidence(i) Fortegra’s and Borrower’s audited financial statements for their fiscal year ended December 31, satisfactory to Agent 2009, (ii) Fortegra’s unaudited consolidated balance sheet and income statement for the month ended April 30, 2010, covering such Person’s and its counsel, that, except as contemplated by Section 3.3(b) hereof, Subsidiaries’ operations during such period and the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices toyear-to date period ending thereon, and taken all other necessary actions required by(iii) Borrower’s unaudited balance sheet and operating summary for the month ended April 30, each applicable Gaming Authority relative to the execution2010, delivery, covering such Person’s and performance of the Loan Documents by the Borrowers its Subsidiaries’ operations during such period and the Guarantorsthree-month period ending thereon;
(tm) Agent Lender shall have received Borrowers' Borrower’s Closing Date Business Plan;
(un) Borrowers Borrower shall pay all Lender Group Expenses then due and payable and invoiced at least one Business Day prior to the Closing Date that are incurred in connection with the transactions evidenced by this Agreement;
(vo) Agent Lender shall have received Borrower’s Required Procedures, which Required Procedures shall be consistent with those previously represented to Lender and shall be acceptable to Lender in its sole discretion;
(p) Lender shall have received evidence satisfactory to Lender either that any Person having a Lien (except for Permitted Liens, if any) with respect to the assets of Borrower shall have released such Lien or that such Lien shall be automatically terminated upon the funding of the Advances to be made on the Closing Date;
(q) Borrower and Fortegra shall have received all other licenses, approvals or evidence of other actions required by any Governmental Authority, if any, in connection with the execution and delivery by Borrower or Fortegra of the Loan Documents to which it is a party or with the consummation of the transactions contemplated thereby;
(r) Lender shall have received satisfactory evidence that as of the date of the initial Advance, Borrower has a Tangible Net Worth of not less than $8,000,000;
(s) Lender’s counsel shall have received and reviewed all standard documentation evidencing, governing, securing and guaranteeing the Premium Finance Agreements, and been satisfied such documentation provides Borrower and Lender with appropriate rights and remedies to enforce any necessary collection actions with respect to such Premium Finance Agreements;
(i) appraisals At the time of such initial Advance, the Real Property Collateral satisfactory to Agentaggregate outstanding amount funded by Borrower out of its own funds under existing Premium Finance Agreements shall be not less than $5,000,000, and (ii) mortgagee title insurance policies the amount of such initial Advance shall not exceed ninety percent (or marked commitments to issue 90%) of the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent aggregate Net Balance of those Eligible Premium Finance Agreements 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, that were not included in the event each Mortgage Policy is for calculation necessary to satisfy the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions condition precedent set forth in the definition immediately preceding clause (i); and
(u) As of "Unrestricted Subsidiary" herein;the Closing Date, Xx Xxxxxx shall have assumed the position of Director of Finance and Operations of Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (Fortegra Financial Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 31December 15, 20021999;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,this Agreement;
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,Disbursement Letter;
(iii) the Fee Pay-Off Letter,;
(iv) the Guaranty,Stock Pledge Agreement;
(v) the Intercompany Subordination Suretyship Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;
(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 within 10 days of 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 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(lg) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8SECTION 6.9, the form and substance (including amounts) of which shall be satisfactory to AgentAgent and its counsel;
(m) [intentionally omitted]
(nh) Agent shall have received opinions the certified copies of Borrowers' the policies of insurance, together with the endorsements thereto, as are required by SECTION 6.9, the form and Guarantors' substance of which shall be satisfactory to Agent and its counsel;
(i) Agent shall have received such Collateral Access Agreements from lessors, warehousemen, bailees, and other third persons as Agent may reasonably require;
(j) Agent shall have received an opinion of Borrower's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesAgent in its Permitted Discretion;
(ok) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, real property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(rl) Agent shall have received completed reference checks with respect to Borrowers' senior managementall financing statements required by Agent, the results of which are satisfactory to Agent in its sole discretionduly executed by Borrower;
(sm) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers Borrower shall pay all Lender Group Expenses incurred by Agent or any other Lender in connection with the entry of Agent and the Lenders into this Agreement;
(n) all other documents and legal matters in connection with the transactions evidenced contemplated by this Agreement;
(v) Agent Agreement deemed to be necessary in Agent's sole discretion, reasonably exercised, shall have received (i) appraisals of the Real Property Collateral satisfactory to Agentbeen delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;its counsel.
Appears in 1 contract
Samples: Loan and Security Agreement (Phonetel Technologies Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July 3126, 2002;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form Borrowers, and substance satisfactory to Agent, or (z) as otherwise agreed in writing by AgentLender shall have received searches reflecting the filing of all such financing statements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentDisbursement Letter,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountPromissory Note,
(iii) the Fee LetterMortgages,
(iv) the GuarantyOfficers' Certificate,
(v) the Intercompany Subordination Agreement;Hazardous Materials Indemnity,
(vi) the Guaranty executed by each of Diversified Opportunities Group Ltd., an Ohio limited liability company, and Gold Dust West Casino, Inc., a Nevada corporation,
(vii) Indenture Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;
(d) Agent 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 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;; -27-
(e) Agent Lender 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 Lender shall have received a certificate of status with respect to each BorrowerBorrower for which such certificates are issued by any Governmental Authority, dated within 10 30 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent Lender shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate such certificates of insurance, together with the endorsements thereto, as are required by Section 6.86.5, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(m) [intentionally omitted]
(n) Agent Lender shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(on) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, -28- assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(o) Lender shall have received an initial report of the type specified in Section 6.2(l) setting forth the EBITDA for the Casino Entities for the twelve (12) month period ending on May 31, 2002;
(p) Borrowers shall have the Required Availability after After giving effect to the initial extensions of credit hereunder, the amount of the Borrowing Base less the Letter of Credit Usage and less the Indenture Reserve shall be not less than $9,000,000;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(r) Agent Lender shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent Lender in its sole discretionPermitted Discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent Lender shall have received Borrowers' Closing Date Business PlanProjections, the results of which are satisfactory to Lender in its Permitted Discretion;
(ut) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vu) Agent Lender shall have received (i) appraisals of the Real Property Collateral satisfactory to AgentLender, 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 Agent Lender (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent Lender assuring Agent Lender 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to AgentLender;
(v) Lender shall have received a phase-I environmental report and a real estate survey with respect to each parcel composing the Real Property Collateral; it being understood thatthe environmental consultants and surveyors retained for such reports or surveys, in the event each Mortgage Policy is for the full amount scope of the Total Commitmentreports or surveys, Agent and the results thereof shall use commercially reasonable efforts be acceptable to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respectLender;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent Lender shall have received copies of each of the material Senior Note DocumentsIndenture and the Black Hawk Bonds, together with all applicable documents setting forth any Borrower's material rights and obligations relating thereto, and including a Officer's Certificate by certificate of the Secretary of the applicable Borrower certifying each such document as being a true, correct, and complete copy thereof;
(x) Borrowers shall have delivered all notices (including any applicable notice required to be delivered to applicable Governmental Authorities under any Gaming Law) and received all licenses, approvals and evidence of other actions required by any Governmental Authority in connection with the same execution and delivery by Borrowers of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(y) 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 the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentAgent in its Permitted Discretion, of each of the conditions precedent set forth below; provided that, if all of the conditions set forth in this Section 3.2 are not satisfied as determined by Agent in its Permitted Discretion, on or before the date that is 90 days after the Closing Date, then this Agreement and the other Loan Documents shall be automatically terminated and the Lender Group shall have no further obligations of any kind hereunder or thereunder:
(a) the Closing Activation Date shall occur on or before July 31, 2002the date occurring ninety (90) days after the Closing Date;
(b) Each of the conditions set forth in Section 3.1 shall have been and continue at all times to be satisfied and Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside received a certificate of the ordinary course chief executive officer of business) Parent dated as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by Activation Date stating the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentsame;
(c) Agent shall have completed a takeover audit of Borrowers by the Activation Date, the results of which shall be satisfactory to Agent in its Permitted Discretion.
(d) Agent shall have received all financing statements required by Agent, duly authorized for filing by the Domestic Guarantors, and Agent shall have received searches reflecting the filing of all such financing statements;
(e) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executedexecuted or authorized to be filed, as appropriate, and each such document shall be in full force and effect:
(i) the Control Stock Pledge Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunderthereunder for each direct and indirect Subsidiary of any Borrower, as well as Stock powers with respect thereto endorsed in blank, or ,
(2ii) the written acknowledgment, Trademark Security Agreements,
(iii) the Share Mortgage together with all share certificates and executed transfers in form blank in respect of all shares charged by it and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control the Guarantee and Debenture,
(iv) the Control Agreements,
(v) the Cash Management Agreements together with verifications of the items described in clause (1) above balances of the Cash Management Accounts subject thereto as of the Activation Date, it being acknowledged and holdsagreed by Borrowers that, or is causing as an additional condition to the Activation Date, as of the Activation Date not less that $25,000,000 of Borrowers' cash shall be held, same for the benefit of Agent;subject to Cash Management Agreements,
(dvi) Agent shall have received a certificate from UCC termination statements and other documentation evidencing the Secretary termination by any prior secured parties of each Borrower attesting their respective Liens in and to the resolutions properties and assets of such Borrower's Board of Directors authorizing its execution, delivery, Borrowers and performance of this Agreement each Guarantor,
(vii) the Guaranties and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;Subsidiary Documents,
(eviii) Collateral Access Agreements from all lessors of Real Property where any Borrower maintains its Chief Executive Office and Equipment maintaining Books and Records or keeps its Books and Records for its business or operations, and
(ix) Collateral Access Agreements in favor of Agent shall have received copies from all of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such BorrowerBorrowers' information technology lessors;
(f) Agent shall have received a certificate of status completed reference checks with respect to each BorrowerBorrowers' senior management, dated within 10 days the results of the Closing Date, such certificate which are satisfactory to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is Agent in good standing in such jurisdictionits sole discretion;
(g) Agent shall have received certificates a certificate of status insurance, together with respect the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to each 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 such Borrower) 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 jurisdictionsAgent;
(h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Activation Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Activation Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate additional opinions of insurancecounsel to Borrowers (including, together with without limitation, HH Australia and HH Canada) and Guarantors pertaining to such matters as Agent may determine as of the endorsements theretoActivation Date, as are required by Section 6.8, the in form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]Borrowers shall have the Required Availability as of the Activation Date after giving effect to the payment of all costs, fees and expenses then due to Agent and/or any Lender hereunder or under the other Loan Documents and the contemplated initial Advances hereunder;
(n) Agent Borrower shall have received opinions of Borrowers' and Guarantors' counsel deliver to Agent, in form and substance content satisfactory to Agent, which opinions shall include opinions an opening balance sheet as of the effective date of the Spin-Off, reviewed by an independent certified public accountant and in form and content satisfactory to Agent in its Permitted Discretion, together with evidence satisfactory to Agent in its Permitted Discretion that Borrowers and their Subsidiaries have had available cash and Cash Equivalents in an aggregate amount not less than $40,000,000 at some time prior to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesActivation Date;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all UCC, tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, incomelien, and franchises judgment searches for all domestic jurisdictions (including Real Property taxesand the non-domestic equivalents of such searches) in which Borrower and each Guarantor and Collateral may be located, gaming taxes, the results of which searches show the recording of Agent's security interests and payroll taxes) have been paid prior otherwise shall be satisfactory to delinquency, except such taxes that are the subject of a Agent in its Permitted ProtestDiscretion;
(p) Borrowers The TMP Loan Agreement and, if any, Security Agreement between Company and TMP entered into in contemplation of the Spin-Off shall have the Required Availability after giving effect been terminated, all obligations to the initial extensions of credit hereunderTMP thereunder shall have been indefeasibly paid and satisfied in full and all liens granted thereunder shall have been terminated;
(q) Agent The Borrowers shall have completed executed and delivered all documents required by Agent and shall have satisfied all other conditions established by Agent in its business Permitted Discretion to cause HH Australia and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties HH Canada to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agentbecome Borrowers hereunder;
(r) Agent shall have received completed reference checks with respect to and reviewed all of Borrowers' senior management, material contracts including without limitation all seller notes payable by a Borrower or any of its Subsidiaries and the results of which are such review shall be satisfactory to Agent in its sole discretionPermitted Discretion;
(s) Agent shall have received evidence, satisfactory to Agent identifications of the Designated Account and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative Designated Account Bank from Administrative Borrower prior to the execution, delivery, and performance of the Loan Documents by the Borrowers and the GuarantorsActivation Date;
(t) Agent and Borrowers shall have received Borrowers' Closing Date Business Planagreed to a mutually acceptable maximum amount for Permitted Investments by Borrowers in Guarantors and to the basis for the financial statements described in the ending language to Section 6.3 prior to the Activation Date;
(u) Borrowers shall pay have delivered to Agent an organizational chart for Borrowers and their Subsidiaries that is true and correct as of the Activation Date,
(v) No material adverse change shall have occurred in Borrowers financial condition or prospects or in the value of the Collateral,
(w) No default or event which, with the giving of notice or passage of time, or both, would be a default shall have occurred and be continuing under any agreement governing indebtedness of any Borrower or any other material agreement of any Borrower; and
(x) all Lender Group Expenses incurred other documents and legal matters in connection with the transactions evidenced contemplated by this Agreement;
(v) Agent Agreement shall have received (i) appraisals of the Real Property Collateral satisfactory to Agentbeen delivered, executed, or recorded 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Highland Group Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any extension of credit provided for hereunder)hereunder on or after the date hereof, is subject to the prior or concurrent fulfillment, to the satisfaction of AgentLender (the making of such initial extension of credit by Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent:
(a) the Closing Restatement Effective Date shall occur on or before July December 31, 20022010;
(b) Agent Borrower shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (received the MidOcean Investment in an aggregate amount which is at least $47,000,000, which shall be first priorityused to, subject only among other things, fund the Restatement Date Redemption and to repay the Permitted Liens (if any) that are specifically entitled pursuant to applicable lawExisting Term Loan in full, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), along with any outstanding interest and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentfees;
(c) Agent Lender shall have received each of the following documentsFee Letter, in form and substance reasonably satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver Amount,
(iii) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security Agreement,
(viii) the Mortgages and the Environmental Indemnities,
(ix) the Representations & Warranties Certificate,
(A) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;
(d) Agent Lender shall have received a certificate from the Secretary of each Borrower (i) attesting to the resolutions of such Borrower's ’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 party, (ii) authorizing specific officers of such Borrower to execute the same, (iii) attesting to the incumbency and signatures of such specific officers of Borrower, and (iv) attaching true and correct copies of the MidOcean Equity Documents, certified by such officer as being true, correct and complete copies thereof as of the Restatement Effective Date;
(e) Agent Lender shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by a certificate from the Secretary of such BorrowerBorrower stating that the Governing Documents and Investor Rights Agreement received by Lender pursuant to the Original Loan Agreement remain in full force and effect on and as of the Restatement Effective Date without modification or amendment in any respect;
(f) Agent Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Restatement 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 Lender shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Closing Restatement Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) 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 Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;Borrower’s Restatement Effective Date Business Plan; and
(i) Agent Borrower shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(o) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes, gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(p) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business and legal due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to Agent;
(r) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(v) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the following conditions precedent set forth belowprecedent:
(a) Lender shall have received a Filing Authorization Letter, duly executed by Borrower and each Seller, and Lender shall have filed appropriate financing statements on Form UCC-1 in such office or offices as may be necessary or, in Lender’s Permitted Discretion, desirable to perfect the Closing Date shall occur on Lender’s Liens in and to the Collateral, including without limitation, (i) one or before July 31more UCC-1 financing statements naming each Seller as debtor and Borrower, 2002as assignor-secured party, and Lender, as assignee-secured party, describing Leases, Chattel Paper and other assets to be acquired by Borrower from such Seller, in form reasonably satisfactory to Lender, and (ii) a financing statement naming Borrower as debtor, and Lender, as secured party, describing all assets of Borrower, in form reasonably satisfactory to Lender;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to AgentBackup Servicing Agreement,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to Collection Account Control Agreement, the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountLockbox Control Agreement and each other Control Agreement,
(iii) the Closing Certificate,
(iv) the Custodial Agreement,
(v) the Disbursement Letter for the initial Advance,
(vi) the Fee Letter,
(iv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor Agreement,
(vii) the IP Security AgreementOfficers’ Certificate,
(viii) the Mortgages a Guaranty of each of Originator and the Environmental Indemnities,Parent;
(ix) the Representations & Warranties Certificate,
Pledge Agreement (A) each Stock Pledge Agreement, together with certificates evidencing all certificated securities and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock blank stock powers with respect thereto endorsed in blankthereto), or (2) the written acknowledgment, in form and substance satisfactory pursuant to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control which Originator pledges all of the items described in clause (1) above and holdsStock of Borrower to Lender, or is causing to be held, same for the benefit of Agenttogether with appropriate UCC-1 financing statements;
(dx) Agent the Purchase and Contribution Agreement;
(xi) the Servicing Agreement; and
(xii) the Subordination Agreements (to the extent of any existing Subordinated Debt).
(c) Lender shall have received a certificate from the Secretary of each Borrower an Authorized Person (i) attesting to the duly adopted resolutions of such Borrower's each Loan Party’s Board of Directors Directors, authorizing its such Loan Party’s execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower Loan Party is a party and party, (ii) authorizing specific officers of such Borrower Loan Party to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Loan Party;
(ed) Agent Lender shall have received copies of each Borrower's Loan Party’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borroweran Authorized Person;
(fe) Agent Lender shall have received (i) a certificate of status with respect to each BorrowerLoan Party, dated within 10 20 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such BorrowerLoan Party, which certificate shall indicate that such Borrower Loan Party is in good standing in such jurisdiction;
, and (gii) Agent shall have received certificates of status with respect to each BorrowerLoan Party, each dated within 30 20 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such BorrowerLoan Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower Loan Party is in good standing in such jurisdictions;
(hf) Agent Lender shall have received a certificate from the Secretary an authorized officer of each Guarantor MLR II (i) attesting to the duly adopted resolutions of such Guarantor's MLR II’s Board of Directors Directors, authorizing its MLR II’s execution, delivery, and performance of the Loan Documents Purchase and Contribution Agreement and the Purchase Date Notice to which such Guarantor is a party and be delivered on the Closing Date, (ii) authorizing specific officers of such Guarantor MLR II to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of MLR II;
(ig) Agent Lender shall have received copies of each Guarantor's MLR II’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary an authorized officer of such GuarantorMLR II;
(jh) Agent Lender shall have received a certificate of status with respect to each GuarantorMLR II, dated within 10 20 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such GuarantorMLR II, which certificate shall indicate that such Guarantor MLR II is in good standing in such jurisdiction;
(ki) Agent Lender shall have received certificates copies of status with respect all Asset-Backed Facility Documents, as amended, modified, or supplemented to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued certified by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictionsan Authorized Person;
(lj) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be reasonably satisfactory to AgentLender;
(mk) [intentionally omitted]
(n) Agent Lender shall have received one or more opinions of Borrowers' counsel to Loan Parties and Guarantors' counsel MLR II, in form and substance satisfactory to AgentLender, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino Licensesin its Permitted Discretion;
(ol) Agent Lender shall have received the Approved Forms and the Required Procedures, all in form and substance satisfactory to Lender, attached as exhibits to the Closing Certificate;
(m) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Parentan Authorized Person) that all tax returns required to be filed by Borrowers Parent and its Subsidiaries have been timely filed and all taxes upon Borrowers Parent and its Subsidiaries or their respective properties, assets, income, and franchises (including Real Property taxes, gaming sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtest (which condition Lender hereby acknowledges has been satisfied);
(pn) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and on-site review of Borrowers' books the Loan Parties’ Books, operating systems and records and back-office functions, Originator’s collateral valuation methods, compliance with Required Procedures, verification of Borrowers' the Loan Parties’ representations and warranties to the Lender GroupLender, (ii) due diligence with respect to and verification of third party service providers, including any replacement servicer or custodian, the results of which shall be satisfactory to AgentLender, and (iiiii) an inspection of each of the Facilitieslocations where Originator conducts business, (iv) review of all documentation relating to Leases originated or acquired by Originator, or to be acquired by Borrower, on or before the Closing Date, (v) review of all Asset-Backed Facility Documents, and (vi) review of Originator’s plan for allocation of future assets among Originator and its Affiliates, the results of which which, in each case, shall be satisfactory acceptable to AgentLender, in its Permitted Discretion;
(ro) Agent Lender shall have completed a systems audit, including, without limitation, a review of Originator’s management information systems, accounting and lease servicing systems;
(p) Lender shall have received completed reference checks with respect to Borrowers' senior managementeach of the Executive Officers, the results of which are satisfactory to Agent in Lender at its sole discretionoption;
(q) Lender shall have received (i) a copy of the audited financial statements of Parent and its Subsidiaries for the fiscal year ended December 31, 2008, (ii) a copy of Parent’s Form 10-Q quarterly report for the quarter ended June 30, 2009, and (iii) a copy of Originator’s unaudited consolidated balance sheet and income statement for the year-to-date period ended August 31, 2009, the results of which, in each case, shall be satisfactory to Lender at its sole option;
(r) Lender shall have received the Closing Date Business Plan, which shall be satisfactory to Lender at its sole option;
(s) Agent Borrower shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents paid or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(u) Borrowers shall pay with the initial Advance all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vt) Agent Each Person that is named as a secured party in a filed financing statement covering any property of Borrower shall release all Liens held against such property (other than Permitted Liens);
(u) Lender shall have received all such agreements, documents, releases and other items as Lender may reasonably require in order to evidence the effective assignment to Borrower of all Leases, Chattel Paper and other assets to be acquired by Borrower from any Seller on the Closing Date, free and clear of all Liens and other interests of all Persons, in form reasonably satisfactory to Lender, including fully executed and completed originals of all applicable Purchase Date Notice(s) with attached Contract Schedule(s) covering all initial Leases being acquired by Borrower;
(v) Borrower shall have (i) appraisals of established the Real Property Collateral satisfactory Collection Account at the Collection Account Bank, and delivered to AgentLender an executed Control Agreement for the Collection Account, (ii) established the Lockbox Account at the Lockbox Bank, and delivered to Lender an executed Control Agreement for the Lockbox Account, and (iii) delivered to Lender an executed Control Agreement for each other Deposit Account and Securities Account maintained by Borrower;
(i) Custodian shall have received the Original Contracts and other Contract Files for all Borrower Leases listed on the initial Contract Schedule and such Contract Files shall have been checked in by the Custodian in accordance with the Custodial Agreement, and (ii) mortgagee title insurance policies Lender shall have received a Custodial Receipt and Report with respect to such Contract Files without any exceptions noted except for such exceptions as have been approved by Lender in advance in its Permitted Discretion;
(or marked commitments x) The initial Advance shall be in an amount not less than $13,250,000;
(y) Lender shall have received satisfactory evidence that as of the Closing Date: (i) Parent’s Tangible Net Worth is not less than $138,000,000; and (ii) Borrower’s Tangible Net Worth is not less than the greater of (A) $5,000,000 and (B) the amount sufficient to issue maintain compliance with the sameBorrowing Base;
(z) On the Funding Date for the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" andinitial Advance, collectively, following the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that initial Advance and the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear payment of all defects fees and encumbrances except Permitted Liensexpenses contemplated hereunder in connection therewith, Borrower shall have Availability of no less than $1,000,000;
(aa) Lender shall have received satisfactory evidence that Borrower has put in place an interest rate hedging program that complies with Section 6.20;
(bb) Each Loan Party shall have received, and provided to Lender a copy of, all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the Mortgage Policies otherwise execution and delivery by such Loan Party of the Loan Documents or with the consummation of the transactions contemplated thereby and all permits or licenses required to be obtained in connection with the conduct of its business;
(cc) Lender shall have received satisfactory evidence that Borrower has begun implementing Lender’s electronic collateral reporting system; and
(dd) 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; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Marlin Business Services Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of AgentLender, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before July December 31, 20022001;
(b) Agent Lender shall have lien searches (i) reflecting effective received all financing statements perfecting Agent's Liens (which shall be first priorityrequired by Lender, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing duly executed by Agent, to have priority over Agent's Liens)Borrower, and (ii) listing Lender shall have received searches reflecting the filing of all other effective such financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agentstatements;
(c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and 7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the form attached hereto as Exhibit N-1) made by Borrower to the order of Agent (for the benefit of the Lender Group) in the original principal amount of the Maximum Revolver AmountDisbursement Letter,
(iii) the Due Diligence Letter,
(iv) the Fee Letter,
(ivv) the Guaranty,
(v) the Intercompany Subordination Agreement;
(vi) the Intercreditor AgreementCash Management Agreements,
(vii) the IP Security AgreementOfficers' Certificate,
(viii) the Mortgages and Stock Pledge Agreement, together with all certificates representing the Environmental Indemnitiesshares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank,
(ix) the Representations & Warranties Certificate,
(A) each Subsidiary Stock Pledge Agreement, and (B) except as otherwise provided together with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or and
(2x) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of AgentIntercreditor Agreement;
(d) Agent 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 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 Lender 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 Lender shall have received a certificate of status with respect to each Borrower, dated within 10 days of 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 Lender shall have received certificates of status with respect to each 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 such Borrower) 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 from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, 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 such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance (including amounts) of which shall be satisfactory to AgentLender;
(mi) [intentionally omitted]
(n) Agent Lender shall have received opinions Collateral Access Agreements with respect to the following location: 0000 Xxxxxxxx Xxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx;
(j) Lender shall have received an opinion of Borrowers' and Guarantors' Borrower's counsel in form and substance satisfactory to Agent, which opinions shall include opinions as to the due issuance and valid existence of the Borrower's and Guarantors' Casino LicensesLender;
(ok) Agent Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of ParentBorrower) that all tax returns required to be filed by Borrowers Borrower have been timely filed and all taxes upon Borrowers Borrower or their its properties, assets, income, and franchises (including Real Property taxes, gaming taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(pl) Borrowers Lender and Lender's counsel shall have been provided with a true and complete copy of each Billing Services Agreement listed on Schedule 3.1(l) and shall have had a reasonable opportunity to review each such Billing Services Agreement, and Lender either (i) shall have advised Borrower that each such Billing Services Agreement is an Approved Billing Services Agreement, or, (ii) as to any Billing Services Agreements that are not Approved Billing Services Agreements, Lender shall have advised Borrower that Lender 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 writing to such arrangement with respect to non-approved Billing Services Agreements;
(m) Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunderhereunder and Lender shall have received satisfactory evidence that Borrower's current liabilities are reasonably current and consistent with Borrower's historical practices;
(qn) Agent Lender shall have completed its business business, legal, and legal collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records and verification of Borrowers' Borrower's representations and warranties to the Lender GroupLender, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the Facilities, the results of which shall be satisfactory to AgentLender;
(ro) Agent Lender shall have received completed reference checks with respect to Borrowers' Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(sp) Agent Lender shall have received evidence, satisfactory to Agent Borrower's 2002 Business Plan and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(uq) Borrowers Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(vr) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, 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 Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent 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 all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the cost of such Mortgage Policies payable by Borrower without affecting the rights and benefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note DocumentsCarrier Agreements listed on Schedule 3.1(r), together with a Officer's Certificate by certificate of the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof;
(s) Borrower 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 this Agreement or any other Loan Document or with the same consummation of the transactions contemplated hereby and thereby; and
(t) 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 the Lender Group;
(y) Agent shall have received copies of each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;Lender.
Appears in 1 contract
