Conditions Precedent to the Initial Loans. The obligations of the Initial Lenders to make the Loans constituting the initial borrowings are subject to the condition precedent that on or before the Effective Date each of the following documents shall have been delivered to the Agent in form and substance satisfactory to the Agent and its counsel, and each of the following actions shall have been performed to the satisfaction of the Agent and its counsel: (a) The Agent shall have received the Facility Documents (including this Agreement, the Notes and the Security Documents identified on Schedule 4.01(a)) duly executed by each of the parties thereto, and in full force and effect; (b) The Agent shall have received a certificate of the Secretary/Clerk or Assistant Secretary/Clerk of each of the Borrowers, dated the Effective Date, attesting to all corporate action taken by such Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which such Borrower is a party and each other document to be executed and delivered by such Borrower pursuant to this Agreement and certifying the names and true signatures of the officers of such Borrower authorized to sign the Facility Documents and the other documents to be executed and delivered by such Borrower under this Agreement; (c) The Agent shall have received a certificate of the Secretary or Assistant Secretary (or equivalent) of the Subsidiary Guarantor, dated the Effective Date, attesting to all corporate action taken by the Subsidiary Guarantor, including resolutions of their Board of Directors (or equivalent) authorizing the execution, delivery and performance of the Facility Documents to which the Subsidiary Guarantor is a party and each other document to be executed and delivered by the Subsidiary Guarantor pursuant to this Agreement and certifying the names and true signatures of the officers of the Subsidiary Guarantor authorized to sign the Facility Documents and the other documents to be executed and delivered by the Subsidiary Guarantor under this Agreement; (d) The Agent shall have received evidence in form and substance satisfactory to the Agent that the merger of CMC with and into a Subsidiary of ACT (the "Merger Transaction") has been completed substantially in accordance with the terms set forth in the Form S-4 Registration Statement of ACT filed with the Securities and Exchange Commission on June 23, 1999, and that such merger and all related transactions comply in all respects with all applicable laws (including applicable securities laws); (e) The Agent shall have received a certificate of a duly authorized officer of the Borrowers dated the Effective Date, stating that the representations and warranties in Article 5 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default; (f) The Agent shall have received (i) a favorable opinion of counsel for the Borrowers and the Subsidiary Guarantor, dated the Effective Date, in substantially the form of Exhibit H hereto, and covering such other matters as the Agent or any Lender may reasonably request, (ii) a confirmation letter from local Irish counsel for Advanced Component Technologies Limited regarding the pledge of ACT's equity in Advanced Component Technologies Limited, and (iii) a favorable opinion of local Mexican counsel for the Mexican Subsidiaries regarding the pledge of CMC's equity in the Mexican Subsidiaries and covering such other matters as the Agent or any Lender may reasonably request; (g) The Agent shall have received a certificate of a duly authorized officer of ACT certifying as to the solvency of the Borrowers and their Subsidiaries after giving effect to the funding of the initial Loans. (h) The Agent shall have received insurance certificates in form satisfactory to the Agent evidencing casualty, all-risk, product liability and other insurance of the Borrowers, their Subsidiaries and their properties and assets having coverages and issued by insurance companies satisfactory to the Agent and naming the Agent as a lender's loss payee and (as appropriate) an additional insured. (i) The Agent shall have received an initial Borrowing Base Certificate, remittance, debit and credit reports, and a statement of accounts in a form acceptable to the Agent with respect to the Borrowers and consistent with the requirements of ss. 6.09 hereof, dated as of not more than 30 days prior to the date of the Loan; (j) The Agent shall be satisfied that the Borrowers have on the Effective Date and will continue to have on the Banking Day subsequent to the Effective Date, in each case after giving effect to the funding of the initial Revolving Credit Loans, Availability equal to or exceeding $15,000,000; (k) The Borrowers shall have delivered to the Agent evidence reasonably satisfactory to the Agent that the Leased Premises do not pose a violation of any Environmental Laws or any liability to the Borrowers under any Environmental Laws; (l) The Agent shall be satisfied with its due diligence review of the Borrowers and their Subsidiaries, including, but not limited to, satisfactory review by the Agent of the projections of the Borrowers and their Subsidiaries; (m) The Agent shall be satisfied with its review of (i) estimated opening balance sheets for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, and (ii) consolidated and consolidating monthly profit and loss statements, balance sheets and cash flow projections for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, for the 12-month period from the Closing Date forward, and on an annual basis for Fiscal Years ending December 31, 2000 and December 31, 2001; (n) The Borrowers shall have delivered to the Agent a schedule of all fixed assets of the Credit Parties with a value greater than or equal to $250,000 (which schedule shall identify the net book value of such assets and identify the amounts of all liens and the identities of lien holders); (o) The Agent shall be satisfied with the results of its checks on the suppliers and customers of the Borrowers and their Subsidiaries; (p) The Agent shall be satisfied with the cash management arrangements (including domestic lock box arrangements) and management information systems in place with respect to the Borrowers and their Subsidiaries; (q) The Agent shall be satisfied with its review of the Borrowers' and their Subsidiaries' Year 2000 MIS conversion and related matters; (r) The Agent shall be satisfied with the arrangements between the Borrowers and their equipment lessors with respect to the Borrowers' equipment leases, which equipment leases are listed on Schedule 4.01(r) hereto; (s) Immediately following the funding of the initial loans hereunder, the Borrowers shall have caused to be repaid in full all outstanding Indebtedness of CMC for borrowed money (other than Indebtedness permitted to remain outstanding under ss. 7.11) and shall have caused to be released all liens in favor of the holders of such Indebtedness; (t) The Agent shall have received letters in form satisfactory to the Agent from the landlords of all real property leased by the Borrowers covering such matters as the Agent may reasonably request; and (u) Not earlier than __ Banking Days prior to the Closing Date, the Agent shall have completed a takedown field examination of the Borrowers and the results thereof shall be satisfactory to the Agent.
Appears in 1 contract
Conditions Precedent to the Initial Loans. The obligations of the Initial Lenders to make the Loans constituting the initial borrowings are subject to the condition precedent that on or before the Effective Date each of the following documents shall have been delivered to the Agent in form and substance satisfactory to the Agent and its counsel, and each of the following actions shall have been performed to the satisfaction of the Agent and its counsel:
(a) The Agent shall have received the Facility Documents (including this Agreement, the Notes and the Security Documents identified on Schedule 4.01(aSCHEDULE 4.01(A)) duly executed by each of the parties thereto, thereto and the Facility Documents shall be in full force and effect;.
(b) The Agent shall have received a certificate of the Secretary/Clerk or Assistant Secretary/Clerk of good standing certificates for Hawk and each of its Subsidiaries from the Borrowers, dated Secretary of State (or the Effective Date, attesting to all corporate action taken by such Borrower, including resolutions equivalent thereof) of its Board jurisdiction of Directors authorizing the execution, delivery and performance of the Facility Documents to which such Borrower is a party organization and each other document state in which it is required to be executed and delivered by such Borrower pursuant qualified to this Agreement and certifying the names and true signatures of the officers of such Borrower authorized to sign the Facility Documents and the other documents transact business, each to be executed dated a recent date prior to the Closing Date and delivered by such Borrower under this Agreement;a bring-down good standing certificate or telephonic confirmation from the appropriate Secretary of State in each jurisdiction of organization of Hawk and each of its Subsidiaries dated or telephonically received on the Closing Date; PROVIDED, HOWEVER, that the foregoing shall not be required with respect to Hawk Motors de Mexico, S. de X.X. de C.V., Hawk Motors Monterrey, S.A. de C.V., Hawk Composites (Suzhou) Company Limited or Hawk Mauritius Ltd.
(c) The Agent shall have received a certificate of the Secretary or Assistant Secretary (or equivalentequivalent thereof) of the Subsidiary Guarantor, Hawk and each of its Domestic Subsidiaries and dated the Effective Closing Date certifying as to (i) a copy of its certificate of incorporation, certificate of limited partnership or other similar organizational document as amended, modified or supplemented prior to the Closing Date (which copy shall be certified to be true, correct and complete by the appropriate Secretary of State as of a recent date prior to the Closing Date), (ii) the by-laws, limited partnership agreement or other similar organizational document of such Person as in effect on the Closing Date, attesting to all corporate action taken by (iii) the Subsidiary Guarantor, including resolutions of their such Person's Board of Directors (or equivalentother governing body, as applicable) approving and authorizing the execution, delivery and performance of the all Facility Documents to which the Subsidiary Guarantor such Person is a party and each other document to be executed and or delivered by the Subsidiary Guarantor such Person pursuant to this Agreement and certifying (iv) the names and true signatures of the incumbent officers of the Subsidiary Guarantor such Person authorized to sign the Facility Documents and the other documents to be executed and delivered by the Subsidiary Guarantor such Person under this Agreement;.
(d) The Agent shall have received evidence satisfactory to it that the Borrowers and the Guarantors shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings that may be necessary or, in the opinion of the Agent, desirable in order to create in favor of the Agent, for the benefit of the Lenders, a valid and perfected First Priority security interest in the entire Collateral. Such actions shall include, without limitation, the following:
(i) delivery to the Lender of all the Security Documents, duly executed by the applicable Borrower or Guarantor, together with accurate and complete schedules to all such Security Documents;
(ii) delivery to the Agent of (A) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to the Agent) representing all capital stock and other equity interests pledged pursuant to the Security Documents and (B) all promissory notes or other instruments (duly endorsed, where appropriate, in a manner satisfactory to the Agent) evidencing any Collateral;
(iii) delivery to the Agent of (A) the results of a recent search (or a recent bringdown search to prior lien searches), by one or more Persons satisfactory to the Agent, of all effective UCC financing statements and fixture filings and all judgment and tax lien filings which may have been made with respect to any Collateral, together with copies of all such filings disclosed by such search, (B) UCC termination statements duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements, fixture filings or comparable filings disclosed in such search (other than any such financing statements or fixture filings in respect of Liens permitted to remain outstanding pursuant to the terms of this Agreement), and (C) UCC financing statements duly authorized and/or executed by each applicable Borrower and Guarantor with respect to all Collateral of such party, for filing in all jurisdictions as may be necessary or, in the opinion of the Agent, desirable to perfect the security interests created in such Collateral pursuant to the Security Documents;
(iv) delivery to the Agent of all cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in respect of any IP Collateral; and
(v) if so requested by the Agent, delivery to the Agent of opinions of counsel (which counsel shall be reasonably satisfactory to the Agent and the Lenders) under the local laws of each jurisdiction where the Borrowers and the Guarantor is organized with respect to the creation and perfection of the security interests in favor of the Agent in the Collateral and such other matters governed by the laws of such jurisdiction regarding such security interests as the Agent may request, in each case in form and substance satisfactory to the Agent.
(e) Hawk and its Subsidiaries shall have obtained all required environmental permits, licenses, authorizations and consents that are necessary in connection with the transactions contemplated by the Facility Documents from the appropriate Governmental Authorities, and each of the foregoing permits, licenses, authorizations and consents shall be in full force and effect. Hawk and its Subsidiaries shall have also obtained all other permits, licenses, authorizations and consents from all other Governmental Authorities and all consents of other Persons with respect to Material Indebtedness, Liens and agreements, in each case that are necessary or advisable in connection with the transactions contemplated by the Facility Document, and each of the foregoing shall be in full force and effect.
(f) The Agent that shall have received and shall be satisfied with (i) the merger certified financial statements referred to in SECTION 5.05 hereof; including, without limitation, the audited consolidated financial statements of CMC with Hawk and into its Subsidiaries for the Fiscal Years ended December 31, 1999, 2000 and 2001, (ii) the unaudited consolidated financial statements of Hawk for the Fiscal Quarter ended March 31, 2002 and the Fiscal Quarter ended June 30, 2002 and (iii) any and all written materials, reports, and/or management letters prepared by Hawk's current independent auditors. All such financial statements shall consist of at least a Subsidiary balance sheet, income statement and statement of ACT (the "Merger Transaction") has been completed substantially cash flows in accordance with GAAP.
(g) The Agent and each Lender shall have received and shall be satisfied with its review of (i) consolidated monthly balance sheet projections and profit and loss statements and cash flow projections for Hawk and its Subsidiaries, prepared in accordance with GAAP, for the terms 2002 Fiscal Year (demonstrating projected financial results for the subsequent 12-month period), (ii) consolidated quarterly balance sheet projections and profit and loss statements and cash flow projections for Hawk and its Subsidiaries prepared in accordance with GAAP, for the 2003 Fiscal Year (demonstrating projected financial results for the subsequent 12-month period, and (iii) consolidated annual balance sheet projections and profit and loss statements and cash flow projections for Hawk and its Subsidiaries, prepared in accordance with GAAP, for the Fiscal Year ended 2004 (demonstrating projected financial results for the subsequent 12-month period), in each case, together with the written assumptions on which such projections are based.
(h) The Agent shall have received and be satisfied that the August 2002 and September 2002 EBITDA results are at least 95% of the projected EBITDA as set forth in the Form S-4 Registration Statement of ACT filed with the Securities and Exchange Commission on June 23Hawk's August 31, 1999, and that such merger and all related transactions comply in all respects with all applicable laws (including applicable securities laws);2002 projections.
(ei) The Agent shall have received a certificate of a duly authorized officer of the Borrowers dated the Effective Date, stating that the representations and warranties in Article ARTICLE 5 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;.
(fj) The Agent shall have received (i) a favorable opinion of Xxxxxxx, Xxxxxxx & Xxxxxx, counsel for the Borrowers and the Subsidiary GuarantorBorrowers, dated the Effective Date, in substantially the form of Exhibit H hereto, and covering such other matters as the Agent or any Lender may reasonably request, (ii) a confirmation letter from local Irish counsel for Advanced Component Technologies Limited regarding the pledge of ACT's equity in Advanced Component Technologies Limited, and (iii) a favorable an opinion of local Mexican counsel for with respect to the Mexican Subsidiaries regarding transactions contemplated by the pledge of CMC's equity in the Mexican Subsidiaries and covering such other matters as Exchange Notes addressed to the Agent and the Lenders, or any Lender may reasonably request;a letter of reliance thereon addressed to the Agent and the Lenders.
(gk) The Agent shall have received a certificate solvency certificates of a duly authorized officer officers of ACT the Borrowers in the form of EXHIBIT C, certifying as to the solvency of each of the Borrowers and their Subsidiaries after giving effect to the funding of the initial Loans.
(hl) The Agent shall have received insurance certificates in form satisfactory to the Agent evidencing casualty, all-risk, product liability liability, business interruption and other insurance of the BorrowersHawk, their its Subsidiaries and their properties and assets having coverages coverage and issued by insurance companies satisfactory to the Agent and naming the Agent as a lender's loss payee payee, mortgagee and (as appropriate) an additional insured, as appropriate.
(im) The Agent shall have received an initial Borrowing Base Certificate, remittance, debit and credit reports, reports and a statement of the aging of accounts in a form reasonably acceptable to the Agent with respect to the Borrowers Hawk and its Subsidiaries and consistent with the requirements of ss. SECTION 6.09 hereof, ; dated as of not more than 30 thirty (30) days prior to the date of the Loan;initial Loans.
(jn) The Agent shall be satisfied that the Borrowers have on the Effective Date and will continue to have on the Banking Day subsequent to the Effective Date, in each case after giving effect to the funding of the initial Revolving Credit Loans, Availability equal to or exceeding $15,000,000;
(k) The Borrowers Hawk shall have delivered to the Agent evidence reasonably satisfactory to the Agent that the Leased Premises do not pose a violation of any Environmental Laws no material liability to Hawk or any liability to the Borrowers of its Subsidiaries under any Environmental Laws;Law exists with respect to the Leasehold Properties or any owned Real Property.
(lo) The Agent shall be satisfied with its field examinations (including the "take-down" field examinations) and due diligence review of the Borrowers Hawk and their its Subsidiaries, including, but not limited to, satisfactory review by the Agent of the projections of the Borrowers Hawk and their its Subsidiaries;
(m) The Agent shall be satisfied with its review of (i) estimated opening balance sheets for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, and (ii) consolidated and consolidating monthly profit and loss statements, balance sheets and cash flow projections for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, for the 12-month period from the Closing Date forward, and on an annual basis for Fiscal Years ending December 31, 2000 and December 31, 2001;
(n) The Borrowers shall have delivered to the Agent a schedule of all fixed assets of the Credit Parties with a value greater than or equal to $250,000 (which schedule shall identify the net book value of such assets and identify the amounts of all liens and the identities of lien holders);
(o) The Agent shall be satisfied with the results of its checks on the suppliers and customers of the Borrowers and their Subsidiaries;.
(p) The Agent shall be satisfied with the cash management arrangements (including domestic lock box arrangements) and management information systems in place with respect to the Borrowers and their Subsidiaries;Subsidiaries and the Agent shall have received counterparts of a Lockbox Agreement and Controlled Account Agreement with respect to all lockboxes and accounts that receive the proceeds of Collateral and of blocked account agreements with respect to the accounts listed on SCHEDULE 4.01(e) hereto, duly executed by all parties thereto and such Lockbox Agreements and Controlled Account Agreements and blocked account agreements shall be in full force and effect and in form and substance reasonably satisfactory to the Agent.
(q) The Agent shall be satisfied have received a duly executed release and termination, together with its review proper UCC-3 termination statements in form and substance satisfactory to the Agent, evidencing the termination of the Borrowers' Indebtedness set forth on SCHEDULE 2.17 and their Subsidiaries' Year 2000 MIS conversion the release of all Liens securing such Indebtedness; and related matters;
(r) The Agent shall be satisfied with the arrangements between the Borrowers and their equipment lessors with respect to the Borrowers' equipment leases, which equipment leases are listed on Schedule 4.01(r) hereto;
(s) Immediately immediately following the funding of the initial loans hereunder, the Borrowers shall have caused to be repaid in full all such outstanding Indebtedness of CMC for borrowed money (other than Indebtedness permitted to remain outstanding under ss. 7.11) and shall have caused to be released all liens in favor of the holders of such Indebtedness;.
(r) The Agent and the Lenders shall have received all fees and other amounts due and payable to such Persons at or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder; and
(s) The Agent shall have received copies of all material contracts and such other documents as the Agent shall have reasonably requested and the same shall be reasonably satisfactory to each of them.
(t) The Agent shall have received letters and be satisfied with an appraisal, performed by a third party appraiser acceptable to the Agent, of Hawk's and its Subsidiaries' inventory.
(u) The Agent shall have received, reviewed and be satisfied with an appraisal of Hawk's and its Subsidiaries' machinery, equipment and real property, all prepared using valuation methodology acceptable to the Agent. To the extent existing appraisals are deemed acceptable in form and content to the Agent, Borrower will be required to direct such appraisers to recertify such appraisals directly to the Agent.
(v) The Agent shall have received and be satisfied with a Landlord's Waiver and Consent, in the form of EXHIBIT D, with respect to each Leasehold Property.
(w) Hawk shall have completed its offer to exchange its Pre-Exchange Notes for new senior notes (the "EXCHANGE NOTES"), with the Exchange Notes being in an amount and having terms, conditions, covenants and a maturity date satisfactory to the Agent from and the landlords Lenders in their sole discretion.
(x) The Agent shall have received a certificate identifying any Phase I or Phase II reports with respect to Hawk's and its Subsidiaries' Owned Property and be satisfied in its sole discretion with the environmental reviews performed.
(y) The Borrowers' shall have a minimum Revolving Availability as of the Effective Date (after giving effect to the funding of all real property leased by Loans and the Borrowers covering issuance of all Letters of Credit to be funded or issued on the Effective Date) of not less than $9,000,000.
(z) The Agent shall have received ALTA loan title insurance policies, title reports, flood zone certifications and such matters other insurance policies, including title, flood and earthquake insurance policies, as the Agent may reasonably request; and
(u) Not earlier than __ Banking Days prior to the Closing Date, the Agent shall have completed a takedown field examination of the Borrowers and the results thereof shall be satisfactory to the Agent.
Appears in 1 contract
Samples: Credit Agreement (Hawk Corp)
Conditions Precedent to the Initial Loans. The obligations No Lender shall be obligated to make its Pro Rata Share of the Initial Lenders to make the Loans constituting Term Loan or the initial borrowings are subject Revolving Loan, or to the condition precedent that on take, fulfill, or before the Effective Date each of perform any other action hereunder, until the following documents shall have been delivered to Agent (the date on which the Lenders make the Term Loan and the initial Revolving Loan after all such conditions shall have been satisfied in a manner satisfactory to Agent and the Lenders or waived in accordance with this Agreement, the “Closing Date”):
(a) a counterpart of this Agreement duly executed by each Loan Party, each Lender and Agent;
(b) a certificate executed by the Secretary of each Loan Party, the form of which is attached hereto as Exhibit C (each and collectively, the “Secretary’s Certificate”), providing verification of incumbency and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by this Agreement and the other Debt Documents and (ii) such Loan Party’s governing documents;
(c) Notes duly executed by Borrower in favor of each Lender that has requested a Note;
(d) filed copies of UCC financing statements, collateral assignments, and termination statements, with respect to the Collateral, as Agent shall request;
(e) certificates of insurance evidencing the insurance coverage, and satisfactory additional insured and lender loss payable endorsements, in each case as required pursuant to Section 6.4 herein;
(f) current UCC lien, judgment, bankruptcy and tax lien search results demonstrating that there are no other Liens (as defined below) on the Collateral, other than Permitted Liens (as defined below);
(g) a Warrant in favor of each Lender (or its affiliate or designee);
(h) a certificate of status/good standing of each Loan Party from the jurisdiction of such Loan Party’s organization and a certificate of foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified could reasonably be expected to have a Material Adverse Effect (as defined below), in each case as of a recent date acceptable to Agent;
(i) a landlord consent and/or bailee letter in favor of Agent executed by the applicable landlord or bailee (the forms of which are attached hereto as Exhibit D-1 and Exhibit D-2, as applicable (each an “Access Agreement”)), for any third party location where any of the following are located: (a) any Loan Party’s principal place of business, (b) any Loan Party’s books or records or (c) Collateral with an aggregate value in excess of $25,000;
(j) a legal opinion of Loan Parties’ from SNR Xxxxxx US LLP, in form and substance satisfactory to Agent;
(k) Intentionally Omitted;
(l) a completed perfection certificate from each Loan Party, duly executed by such Loan Party (each and collectively, the “Perfection Certificate”), a form of which Agent previously delivered to Borrower;
(m) the Sweep Account Agreement (as defined in Schedule E hereto) and its counselone or more Account Control Agreements (as defined below), in form and substance reasonably acceptable to Agent, duly executed by the applicable Loan Parties and the applicable depository or financial institution, for the Sweep Account (as such term is defined in Schedule E) and each of the following actions shall have been performed other deposit and securities account to the satisfaction of the Agent and its counsel:extent required pursuant to Section 7.10;
(a) The Agent shall have received the Facility Documents (including this Agreement, the Notes and the Security Documents identified on Schedule 4.01(a)n) duly executed by each originals of an initial Borrowing Base Certificate from Borrower, dated the parties theretoClosing Date, and reflecting information concerning Qualified Accounts (as such term is defined in full force and effectSchedule C) of Borrower as of a date not more than one (1) month prior to the Closing Date;
(bo) The Agent shall have received duly executed originals of a certificate Notice of the Secretary/Clerk or Assistant Secretary/Clerk of each of the BorrowersRevolving Credit Advance, dated the Effective Closing Date, attesting with respect to all corporate action taken by such Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which such Borrower is a party and each other document initial Revolving Loan to be executed and delivered requested by such Borrower pursuant to this Agreement and certifying on the names and true signatures of the officers of such Borrower authorized to sign the Facility Documents and the other documents to be executed and delivered by such Borrower under this AgreementClosing Date;
(cp) The Agent shall have received a certificate of the Secretary or Assistant Secretary (or equivalent) of the Subsidiary Guarantordisbursement instruction letter, dated the Effective Date, attesting to all corporate action taken by the Subsidiary Guarantor, including resolutions of their Board of Directors (or equivalent) authorizing the execution, delivery and performance of the Facility Documents to which the Subsidiary Guarantor is a party and each other document to be executed and delivered by the Subsidiary Guarantor pursuant to this Agreement and certifying the names and true signatures of the officers of the Subsidiary Guarantor authorized to sign the Facility Documents and the other documents to be executed and delivered by the Subsidiary Guarantor under this Agreement;
(d) The Agent shall have received evidence in form and substance satisfactory to Agent and the Lenders, executed by each Loan Party, Agent that the merger of CMC with and into a Subsidiary of ACT each Lender (the "Merger Transaction") has been completed substantially in accordance with the terms set forth in the Form S-4 Registration Statement of ACT filed with the Securities and Exchange Commission on June 23, 1999, and that such merger and all related transactions comply in all respects with all applicable laws (including applicable securities laws“Disbursement Letter”);
(eq) The Agent shall have received a certificate pledge agreement, in form and substance satisfactory to Agent, executed by each Loan Party and pledging to Agent, for the benefit of itself and the Lenders, a duly authorized officer security interest in 65% of the Borrowers dated shares of the Effective Dateoutstanding voting capital stock and 100% of the shares of the outstanding non-voting capital stock of PharmAthene UK (as defined below), stating that and a security interest in 65% of the representations and warranties in Article 5 are true and correct on such date shares of the outstanding voting capital stock of PharmAthene Canada (as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;defined below) (the “Pledge Agreement”)
(fr) The Agent shall have received (i) a favorable opinion of counsel for the Borrowers all other documents and the Subsidiary Guarantor, dated the Effective Date, in substantially the form of Exhibit H hereto, and covering such other matters instruments as the Agent or any Lender may reasonably requestdeem necessary or appropriate to effectuate the intent and purpose of this Agreement (together with the Agreement, (ii) a confirmation letter from local Irish counsel for Advanced Component Technologies Limited regarding the pledge Notes, the Warrants, the Account Control Agreements, the Sweep Account Agreement, all Assignment of ACT's equity in Advanced Component Technologies LimitedRights Contracts, the Access Agreements, the Perfection Certificate, the Pledge Agreement, the Secretary’s Certificate and the Disbursement Letter, all Compliance Certificates, all Borrowing Base Certificates, all Notices of Revolving Loan Advances, and (iii) a favorable opinion of local Mexican counsel for the Mexican Subsidiaries regarding the pledge of CMC's equity in the Mexican Subsidiaries all other agreements, instruments, documents and covering such other matters as the Agent or any Lender may reasonably request;
(g) The Agent shall have received a certificate of a duly authorized officer of ACT certifying as to the solvency of the Borrowers and their Subsidiaries after giving effect to the funding of the initial Loans.
(h) The Agent shall have received insurance certificates in form satisfactory to the Agent evidencing casualty, all-risk, product liability and other insurance of the Borrowers, their Subsidiaries and their properties and assets having coverages and issued by insurance companies satisfactory to the Agent and naming the Agent as a lender's loss payee and (as appropriate) an additional insured.
(i) The Agent shall have received an initial Borrowing Base Certificate, remittance, debit and credit reports, and a statement of accounts in a form acceptable to the Agent with respect to the Borrowers and consistent with the requirements of ss. 6.09 hereof, dated as of not more than 30 days prior to the date of the Loan;
(j) The Agent shall be satisfied that the Borrowers have on the Effective Date and will continue to have on the Banking Day subsequent to the Effective Date, in each case after giving effect to the funding of the initial Revolving Credit Loans, Availability equal executed and/or delivered to or exceeding $15,000,000;
(k) The Borrowers shall have delivered in favor of Agent from time to time in connection with this Agreement or the Agent evidence reasonably satisfactory to transactions contemplated hereby, the Agent that the Leased Premises do not pose a violation of any Environmental Laws or any liability to the Borrowers under any Environmental Laws;
(l) The Agent shall be satisfied with its due diligence review of the Borrowers and their Subsidiaries, including, but not limited to, satisfactory review by the Agent of the projections of the Borrowers and their Subsidiaries;
(m) The Agent shall be satisfied with its review of (i) estimated opening balance sheets for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries“Debt Documents”), prepared in accordance with GAAP, and (ii) consolidated and consolidating monthly profit and loss statements, balance sheets and cash flow projections for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, for the 12-month period from the Closing Date forward, and on an annual basis for Fiscal Years ending December 31, 2000 and December 31, 2001;
(n) The Borrowers shall have delivered to the Agent a schedule of all fixed assets of the Credit Parties with a value greater than or equal to $250,000 (which schedule shall identify the net book value of such assets and identify the amounts of all liens and the identities of lien holders);
(o) The Agent shall be satisfied with the results of its checks on the suppliers and customers of the Borrowers and their Subsidiaries;
(p) The Agent shall be satisfied with the cash management arrangements (including domestic lock box arrangements) and management information systems in place with respect to the Borrowers and their Subsidiaries;
(q) The Agent shall be satisfied with its review of the Borrowers' and their Subsidiaries' Year 2000 MIS conversion and related matters;
(r) The Agent shall be satisfied with the arrangements between the Borrowers and their equipment lessors with respect to the Borrowers' equipment leases, which equipment leases are listed on Schedule 4.01(r) hereto;; and
(s) Immediately following the funding of the initial loans hereunder, the Borrowers shall have caused to be repaid in full all outstanding Indebtedness of CMC for borrowed money (other than Indebtedness permitted to remain outstanding under ss. 7.11) Agent and shall have caused to be released all liens in favor of the holders of such Indebtedness;
(t) The Agent Lenders shall have received letters in form satisfactory the fees required to the Agent from the landlords of all real property leased be paid by the Borrowers covering such matters as the Agent may reasonably request; and
(u) Not earlier than __ Banking Days prior to the Closing DateBorrower, the Agent and Borrower shall have completed a takedown field examination reimbursed Agent and Lenders for all fees, costs and expenses of closing presented as of the Borrowers and the results thereof shall be satisfactory to the Agentdate of this Agreement.
Appears in 1 contract
Conditions Precedent to the Initial Loans. The obligations of the Initial Lenders to make the Loans constituting the initial borrowings are subject to the condition precedent that on or before the Effective Date each of the following documents shall have been delivered to the Agent in form and substance satisfactory to the Agent and its counsel, and each of the following actions shall have been performed to the satisfaction of the Agent and its counsel:
(a) The Agent shall have received the Facility Documents (including this Agreement, the Notes and the Security Documents identified on Schedule 4.01(aSCHEDULE 5.01(a)) duly executed by each of the parties thereto, and in full force and effect;
(b) The Agent shall have received a certificate of the Secretary/Clerk or Assistant Secretary/Clerk of each of the Borrowers, dated the Effective Date, attesting to all corporate action taken by such Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which such Borrower is a party and each other document to be executed and delivered by such Borrower pursuant to this Agreement and certifying the names and true signatures of the officers of such Borrower authorized to sign the Facility Documents and the other documents to be executed and delivered by such Borrower under this Agreement;
(c) The Agent shall have received a certificate of the Secretary or Assistant Secretary (or equivalent) of the Subsidiary Guarantoreach Guarantor and each Security Document Party, dated the Effective Date, attesting to all corporate action taken by the Subsidiary Guarantorsuch Guarantor and such Security Document Party, including resolutions of their Board of Directors (or equivalent) authorizing the execution, delivery and performance of the Facility Documents to which the Subsidiary such Guarantor or Security Document Party is a party and each other document to be executed and delivered by the Subsidiary such Guarantor or Security Document Party pursuant to this Agreement and certifying the names and true signatures of the officers of the Subsidiary such Guarantor or Security Document Party authorized to sign the Facility Documents and the other documents to be executed and delivered by the Subsidiary such Guarantor or Security Document Party under this Agreement;
(d) The Agent shall have received evidence satisfactory to it that the Borrowers, the Guarantors and any Security Document Parties shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings (other than the filing or recording of items delivered to the Agent for filing contemporaneous with the funding of the initial Loans on the Closing Date) that may be necessary or, in the opinion of the Agent, desirable in order to create in favor of the Agent, for the benefit of the Lenders, a valid and (upon such filing and recording) perfected First Priority security interest in the entire personal and mixed property Collateral. Such actions shall include, without limitation, the following: (i) delivery to the Lender of all the Security Documents, duly executed by the applicable Borrower, Guarantor or Security Document Party, together with accurate and complete schedules to all such Security Documents; (ii) delivery to the Agent of (A) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise reasonably satisfactory in form and substance to the Agent) representing all capital stock and other equity interests pledged pursuant to the Security Documents and (B) all promissory notes or other instruments (duly endorsed, where appropriate, in a manner reasonably satisfactory to the Agent) evidencing any Collateral; (iii) delivery to the Agent of (A) the results of a recent search, by one or more Persons satisfactory to the Agent, of all effective UCC financing statements and fixture filings and all judgment and tax lien filings which may have been made with respect to any Collateral, together with copies of all such filings disclosed by such search, (B) UCC termination statements duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements, fixture filings or comparable filings disclosed in such search (other than any such financing statements or fixture filings in respect of Liens permitted to remain outstanding pursuant to the terms of this Agreement) or if UCC termination statements cannot be obtained from a creditor whose debt is to be repaid with the proceeds of the Initial Loans, an agreement to deliver such termination statements upon receipt by such creditor of payment in full of the amounts due such creditor, and (C) UCC financing statements and, where appropriate, fixture filings, duly executed by each applicable Borrower, Guarantor and Security Document Party with respect to all Collateral of such party, for filing in all jurisdictions as may be necessary or, in the opinion of the Agent, desirable to perfect the security interests created in such Collateral pursuant to the Security Documents; (iv) delivery to the Agent of all cover sheets or other documents or instruments required to be filed in order to create or perfect Liens in respect of any IP Collateral; and (v) delivery to the Agent of opinions of counsel (which counsel shall be reasonably satisfactory to the Lender) under the local laws of each jurisdiction where the Borrowers, the Guarantor or any Security Document Party is organized or maintains an office or facility with respect to the creation and perfection of the security interests in favor of the Agent in the Collateral and such other matters governed by the laws of such jurisdiction regarding such security interests as the Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Agent.
(e) The Agent shall have received from the Borrowers:
(i) In the case of each Material Leasehold Property existing as of the Closing Date, copies of all leases between any Borrower and any landlord or tenant;
(ii) In the case of each Material Leasehold Property existing as of the Closing Date, a Landlord's Waiver and Consent with respect thereto and where required by the terms of any lease, the consent of the mortgagee, ground lessor or other party.
(f) The Borrowers shall have obtained all required environmental permits, licenses, authorizations and consents that are necessary in connection with the merger transactions 49 contemplated by the Facility Documents from the appropriate Governmental Authorities, and each of CMC the foregoing permits, licenses, authorizations and consents shall be in full force and effect. The Borrowers shall have also obtained all other permits, licenses, authorizations and consents from all other Governmental Authorities and all consents of other Persons with respect to Material Indebtedness, Liens and into a Subsidiary material agreements, in each case that are necessary or advisable in connection with the transactions contemplated by the Facility Documents, and each of ACT the foregoing shall be in full force and effect.
(g) The Agent shall have received and shall be satisfied with (i) the "Merger Transaction"certified financial statements referred to in Section 6.05 hereof, including, without limitation, the audited consolidated financial statements of the Borrowers for the three most recent fiscal years of the Borrowers and (ii) has been completed substantially any and all written materials, reports, and/or management letters prepared by the Borrowers' current independent auditors;
(h) The Agent shall have received and shall be satisfied with its review of (i) estimated opening balance sheets for the Borrowers and their Subsidiaries, prepared in accordance with GAAP, (ii) consolidated quarterly profit and loss statements and cash flow projections for the terms set forth Borrowers and their Subsidiaries, prepared in accordance with GAAP, for the Form S-4 Registration Statement of ACT filed 2002 Fiscal Year, and on an annual basis for Fiscal Years 2003 and 2004, together with the Securities and Exchange Commission written assumptions on June 23, 1999which such projections are based, and that (iii) consolidated balance sheet projections for the Borrowers and their Subsidiaries, prepared in accordance with GAAP, for Fiscal Years 2002, 2003, and 2004, together with the written assumptions on which such merger and all related transactions comply in all respects with all applicable laws (including applicable securities laws)projections are based;
(ei) The Agent shall have received a certificate of a duly authorized officer of the Borrowers dated the Effective Date, stating that the representations and warranties in Article 5 6 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(fj) The Agent shall have received (i) a favorable opinion of Xxxx & Xxxxxxx, counsel for the Borrowers and the Subsidiary GuarantorBorrowers, dated the Effective Date, in substantially the form of Exhibit H EXHIBIT G hereto, and covering such other matters as the Agent or any Lender may reasonably request, (ii) a confirmation letter from local Irish counsel for Advanced Component Technologies Limited regarding the pledge of ACT's equity in Advanced Component Technologies Limited, and (iii) a favorable opinion of local Mexican counsel for the Mexican Subsidiaries regarding the pledge of CMC's equity in the Mexican Subsidiaries and covering such other matters as the Agent or any Lender may reasonably request;.
(gk) The Agent shall have received a certificate of a duly authorized officer of ACT Option Care in the form of EXHIBIT F annexed hereto certifying as to the solvency of the Borrowers and their Subsidiaries after giving effect to the funding of the initial Loans.
(hl) The Agent shall have received insurance certificates in form reasonably satisfactory to the Agent evidencing casualty, all-risk, product liability and other insurance of the Borrowers, their Subsidiaries and their properties and assets having coverages and issued by insurance companies reasonably satisfactory to the Agent and naming the Agent as a lender's loss payee and (as appropriate) an additional insured.
(im) The Agent shall have received an initial Borrowing Base Certificate, remittance, debit and credit reports, and a statement of accounts in a form reasonably acceptable to the Agent with respect to the Borrowers and consistent with the requirements of ss. 6.09 Section 7.09 hereof, dated as of not more than 30 days prior to the date of the Loan;; 50
(j) The Agent shall be satisfied that the Borrowers have on the Effective Date and will continue to have on the Banking Day subsequent to the Effective Date, in each case after giving effect to the funding of the initial Revolving Credit Loans, Availability equal to or exceeding $15,000,000;
(kn) The Borrowers shall have delivered to the Agent evidence reasonably satisfactory to the Agent that the Leased Premises Leasehold Properties do not pose a violation of any Environmental Laws or any liability to the Borrowers under any Environmental Laws;
(lo) The Agent shall be satisfied that the Borrowers and their Subsidiaries are in compliance with all federal and state governmental regulations, all Medicare and Medicaid billing and reporting procedures, and all other licensing and registration requirements applicable to the industry of Borrowers and their Subsidiaries;
(p) The Agent shall have received and be satisfied with its review of the Borrowers' and Subsidiaries' history regarding the nature of any claims asserted by any Government Account Debtor regarding overpayments made to the Borrowers and their Subsidiaries by such Government Account Debtor, settlements with respect to Medicare and Medicare cost reports, and rights of Government Account Debtors to reduce or offset receivables and other amounts due to the Borrowers and their Subsidiaries.
(q) The Agent shall be satisfied with its due diligence review of the Borrowers and their Subsidiaries, including, but not limited to, satisfactory review by the Agent of the projections of the Borrowers and their Subsidiaries;
(m) The Agent shall be satisfied with its review of (i) estimated opening balance sheets for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, and (ii) consolidated and consolidating monthly profit and loss statements, balance sheets and cash flow projections for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, for the 12-month period from the Closing Date forward, and on an annual basis for Fiscal Years ending December 31, 2000 and December 31, 2001;
(n) The Borrowers shall have delivered to the Agent a schedule of all fixed assets of the Credit Parties with a value greater than or equal to $250,000 (which schedule shall identify the net book value of such assets and identify the amounts of all liens and the identities of lien holders);
(o) The Agent shall be satisfied with the results of its checks on the suppliers and customers of the Borrowers and their Subsidiaries;
(pr) The Agent shall be satisfied with the cash management arrangements (including domestic lock box arrangements) and management information systems in place with respect to the Borrowers and their Subsidiaries;
(q) The Subsidiaries and the Agent shall be satisfied with its review have received counterparts of the Borrowers' all Lockbox Agreements and their Subsidiaries' Year 2000 MIS conversion Controlled Account Agreements duly executed by all parties thereto and related matters;
(r) The Agent such Lockbox Agreements and Controlled Account Agreements shall be satisfied with the arrangements between the Borrowers in full force and their equipment lessors with respect effect and in form and substance reasonably satisfactory to the Borrowers' equipment leases, which equipment leases are listed on Schedule 4.01(r) heretoAgent;
(s) the Borrowers shall have sent an Account Debtor Notice to each XxxXx and HMO that is an Account Debtor of the Borrowers as of the Closing Date;
(t) Immediately following the funding of the initial loans hereunder, the Borrowers shall have caused to be repaid in full all outstanding Indebtedness of CMC for borrowed money (other than Indebtedness permitted to remain outstanding under ss. 7.11) set forth on SCHEDULE 2.17 annex hereto and shall have caused to be released all liens in favor of the holders of such Indebtedness;
(tu) The Agent and the Lenders shall have received all fees and other amounts due and payable to such Persons at or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder; and
(v) The Agent shall have received letters in form satisfactory to the Agent from the landlords of all real property leased by the Borrowers covering material contracts and such matters other documents as the Agent may reasonably request; and
(u) Not earlier than __ Banking Days prior to the Closing Date, the Agent or any Lender shall have completed a takedown field examination of the Borrowers reasonably requested and the results thereof same shall be reasonably satisfactory to the Agenteach of them.
Appears in 1 contract
Conditions Precedent to the Initial Loans. The Effectiveness of this Agreement (and the amendment and restatement of the Existing Credit Agreement to be effected hereby) and of the obligations of the Initial Lenders to make the Loans constituting the initial borrowings are subject to the condition precedent that on or before the Effective Date each of the following documents shall have been delivered to the Agent and, where so required below in this section 4.01, to the Lenders, in form and substance satisfactory to the Agent and its counsel, and each of the following actions shall have been performed to the satisfaction of the Agent and its counsel:
(a) The Agent shall have received the Facility Documents (including this Agreement, the Notes and the Security Documents identified on Schedule 4.01(a)Documents) duly executed by each of the parties thereto, and in full force and effect;
(b) The Agent shall have received a certificate of the Secretary/Clerk or Assistant Secretary/Clerk Secretary of each of the Borrowers, dated the Effective Date, attesting to all corporate action taken by such Borrowerthe Borrowers, including resolutions of its Board the Boards of Directors of the Borrowers authorizing the execution, delivery and performance of the Facility Documents to which such Borrower is a party and each other document to be executed and delivered by such Borrower pursuant to this Agreement and certifying the names and true signatures of the officers of such Borrower authorized to sign the Facility Documents and the other documents to be executed and delivered by such Borrower under this Agreement;
(c) The Agent shall have received a certificate of the Secretary or Assistant Secretary (or equivalent) of the Subsidiary Guarantor, dated the Effective Date, attesting to all corporate action taken by the Subsidiary Guarantor, including resolutions of their Board of Directors (or equivalent) authorizing the execution, delivery and performance of the Facility Documents to which the Subsidiary Guarantor is a party and each other document to be executed and delivered by the Subsidiary Guarantor Borrowers pursuant to this Agreement and certifying the names and true signatures of the officers of the Subsidiary Guarantor Borrowers authorized to sign the Facility Documents and the other documents to be executed and delivered by the Subsidiary Guarantor Borrowers under this Agreement;
(dc) The Agent shall have received evidence satisfactory to it that the Borrowers shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings (other than the filing or recording of items delivered to the Agent for filing contemporaneous with the Closing Date) that may be necessary or, in the opinion of the Agent, desirable in order to create in favor of the Agent, for the benefit of the Lenders, a valid and (upon such filing and recording) perfected First Priority security interest in the entire personal and mixed property Collateral. Such actions shall include, without limitation, the following: (i) delivery to the Agent of all the Security Documents, duly executed by the applicable Borrower, together with accurate and complete schedules to all such Security Documents; (ii) to the extent not previously delivered to the Agent in connection with the Existing Credit Agreement, delivery to the Agent of (A) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise reasonably satisfactory in form and substance satisfactory to the Agent that Agent) representing all capital stock and other equity interests pledged pursuant to the merger of CMC with Security Documents and into a Subsidiary of ACT (the "Merger Transaction"B) has been completed substantially in accordance with the terms set forth in the Form S-4 Registration Statement of ACT filed with the Securities and Exchange Commission on June 23all promissory notes or other instruments (duly endorsed, 1999, and that such merger and all related transactions comply in all respects with all applicable laws (including applicable securities laws);
(e) The Agent shall have received a certificate of a duly authorized officer of the Borrowers dated the Effective Date, stating that the representations and warranties in Article 5 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(f) The Agent shall have received (i) a favorable opinion of counsel for the Borrowers and the Subsidiary Guarantor, dated the Effective Datewhere appropriate, in substantially the form of Exhibit H hereto, and covering such other matters as the Agent or any Lender may reasonably request, (ii) a confirmation letter from local Irish counsel for Advanced Component Technologies Limited regarding the pledge of ACT's equity in Advanced Component Technologies Limited, and (iii) a favorable opinion of local Mexican counsel for the Mexican Subsidiaries regarding the pledge of CMC's equity in the Mexican Subsidiaries and covering such other matters as the Agent or any Lender may reasonably request;
(g) The Agent shall have received a certificate of a duly authorized officer of ACT certifying as to the solvency of the Borrowers and their Subsidiaries after giving effect to the funding of the initial Loans.
(h) The Agent shall have received insurance certificates in form satisfactory to the Agent evidencing casualty, all-risk, product liability and other insurance of the Borrowers, their Subsidiaries and their properties and assets having coverages and issued by insurance companies satisfactory to the Agent and naming the Agent as a lender's loss payee and (as appropriate) an additional insured.
(i) The Agent shall have received an initial Borrowing Base Certificate, remittance, debit and credit reports, and a statement of accounts in a form acceptable to the Agent with respect to the Borrowers and consistent with the requirements of ss. 6.09 hereof, dated as of not more than 30 days prior to the date of the Loan;
(j) The Agent shall be satisfied that the Borrowers have on the Effective Date and will continue to have on the Banking Day subsequent to the Effective Date, in each case after giving effect to the funding of the initial Revolving Credit Loans, Availability equal to or exceeding $15,000,000;
(k) The Borrowers shall have delivered to the Agent evidence manner reasonably satisfactory to the Agent that the Leased Premises do not pose a violation of Agent) evidencing any Environmental Laws or any liability to the Borrowers under any Environmental LawsCollateral;
(l) The Agent shall be satisfied with its due diligence review of the Borrowers and their Subsidiaries, including, but not limited to, satisfactory review by the Agent of the projections of the Borrowers and their Subsidiaries;
(m) The Agent shall be satisfied with its review of (i) estimated opening balance sheets for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, and (ii) consolidated and consolidating monthly profit and loss statements, balance sheets and cash flow projections for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, for the 12-month period from the Closing Date forward, and on an annual basis for Fiscal Years ending December 31, 2000 and December 31, 2001;
(n) The Borrowers shall have delivered to the Agent a schedule of all fixed assets of the Credit Parties with a value greater than or equal to $250,000 (which schedule shall identify the net book value of such assets and identify the amounts of all liens and the identities of lien holders);
(o) The Agent shall be satisfied with the results of its checks on the suppliers and customers of the Borrowers and their Subsidiaries;
(p) The Agent shall be satisfied with the cash management arrangements (including domestic lock box arrangements) and management information systems in place with respect to the Borrowers and their Subsidiaries;
(q) The Agent shall be satisfied with its review of the Borrowers' and their Subsidiaries' Year 2000 MIS conversion and related matters;
(r) The Agent shall be satisfied with the arrangements between the Borrowers and their equipment lessors with respect to the Borrowers' equipment leases, which equipment leases are listed on Schedule 4.01(r) hereto;
(s) Immediately following the funding of the initial loans hereunder, the Borrowers shall have caused to be repaid in full all outstanding Indebtedness of CMC for borrowed money (other than Indebtedness permitted to remain outstanding under ss. 7.11) and shall have caused to be released all liens in favor of the holders of such Indebtedness;
(t) The Agent shall have received letters in form satisfactory to the Agent from the landlords of all real property leased by the Borrowers covering such matters as the Agent may reasonably request; and
(u) Not earlier than __ Banking Days prior to the Closing Date, the Agent shall have completed a takedown field examination of the Borrowers and the results thereof shall be satisfactory to the Agent.
Appears in 1 contract
Conditions Precedent to the Initial Loans. The obligations of the Initial Lenders to make the Loans constituting the initial borrowings are subject to the condition precedent that on or before the Effective Date each of the following documents shall have been delivered to the Agent and, where so required below in this Section 4.01, to the Lenders, in form and substance satisfactory to the Agent and its counsel, and each of the following actions shall have been performed to the satisfaction of the Agent and its counsel:
(a) The Agent shall have received the Facility Documents (including this Agreement, the Notes and the Security Documents identified on Schedule 4.01(a)Documents) duly executed by each of the parties thereto, and in full force and effect;
(b) The Agent shall have received a certificate of the Secretary/Clerk or Assistant Secretary/Clerk of each of the Borrowers, dated the Effective Date, attesting to all corporate action taken by such Borrower, including resolutions of its Board of Directors authorizing the execution, delivery and performance of the Facility Documents to which such 42 44 Borrower is a party and each other document to be executed and delivered by such Borrower pursuant to this Agreement and certifying the names and true signatures of the officers of such Borrower authorized to sign the Facility Documents and the other documents to be executed and delivered by such Borrower under this Agreement;
(c) The Agent shall have received a certificate of the Secretary or Assistant Secretary (or equivalent) of the Subsidiary Guarantoreach Guarantor and each Security Document Party, dated the Effective Date, attesting to all corporate action taken by the Subsidiary Guarantorsuch Guarantor and such Security Document Party, including resolutions of their Board of Directors (or equivalent) authorizing the execution, delivery and performance of the Facility Documents to which the Subsidiary such Guarantor or Security Document Party is a party and each other document to be executed and delivered by the Subsidiary such Guarantor or Security Document Party pursuant to this Agreement and certifying the names and true signatures of the officers of the Subsidiary such Guarantor or Security Document Party authorized to sign the Facility Documents and the other documents to be executed and delivered by the Subsidiary such Guarantor or Security Document Party under this Agreement;
(d) The Agent shall have received evidence in form satisfactory to it that the Borrowers, the Guarantors and substance satisfactory any Security Document Parties shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings (other than the filing or recording of items delivered to the Agent that the merger of CMC for filing contemporaneous with and into a Subsidiary of ACT (the "Merger Transaction") has been completed substantially in accordance with the terms set forth in the Form S-4 Registration Statement of ACT filed with the Securities and Exchange Commission on June 23, 1999, and that such merger and all related transactions comply in all respects with all applicable laws (including applicable securities laws);
(e) The Agent shall have received a certificate of a duly authorized officer of the Borrowers dated the Effective Date, stating that the representations and warranties in Article 5 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(f) The Agent shall have received (i) a favorable opinion of counsel for the Borrowers and the Subsidiary Guarantor, dated the Effective Date, in substantially the form of Exhibit H hereto, and covering such other matters as the Agent or any Lender may reasonably request, (ii) a confirmation letter from local Irish counsel for Advanced Component Technologies Limited regarding the pledge of ACT's equity in Advanced Component Technologies Limited, and (iii) a favorable opinion of local Mexican counsel for the Mexican Subsidiaries regarding the pledge of CMC's equity in the Mexican Subsidiaries and covering such other matters as the Agent or any Lender may reasonably request;
(g) The Agent shall have received a certificate of a duly authorized officer of ACT certifying as to the solvency of the Borrowers and their Subsidiaries after giving effect to the funding of the initial Loans.
Loans on the Closing Date) that may be necessary or, in the opinion of the Agent, desirable in order to create in favor of the Agent, for the benefit of the Lenders, a valid and (hupon such filing and recording) The Agent perfected First Priority security interest in the entire personal and mixed property Collateral. Such actions shall have received insurance certificates in form satisfactory include, without limitation, the following: (i) delivery to the Agent evidencing casualtyof all the Security Documents, all-riskduly executed by the applicable Borrower, product liability Guarantor or Security Document Party, together with accurate and other insurance of the Borrowers, their Subsidiaries and their properties and assets having coverages and issued by insurance companies satisfactory complete schedules to all such Security Documents; (ii) delivery to the Agent of (A) except in the case of equity interests of Foreign Subsidiaries not represented by certificates, certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and naming otherwise reasonably satisfactory in form and substance to the Agent as a lender's loss payee Agent) representing all capital stock and other equity interests pledged pursuant to the Security Documents and (as B) all promissory notes or other instruments (duly endorsed, where appropriate) an additional insured.
(i) The Agent shall have received an initial Borrowing Base Certificate, remittance, debit and credit reports, and a statement of accounts in a form acceptable to the Agent with respect to the Borrowers and consistent with the requirements of ss. 6.09 hereof, dated as of not more than 30 days prior to the date of the Loan;
(j) The Agent shall be satisfied that the Borrowers have on the Effective Date and will continue to have on the Banking Day subsequent to the Effective Date, in each case after giving effect to the funding of the initial Revolving Credit Loans, Availability equal to or exceeding $15,000,000;
(k) The Borrowers shall have delivered to the Agent evidence manner reasonably satisfactory to the Agent that the Leased Premises do not pose a violation of Agent) evidencing any Environmental Laws or any liability to the Borrowers under any Environmental LawsCollateral;
(l) The Agent shall be satisfied with its due diligence review of the Borrowers and their Subsidiaries, including, but not limited to, satisfactory review by the Agent of the projections of the Borrowers and their Subsidiaries;
(m) The Agent shall be satisfied with its review of (i) estimated opening balance sheets for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, and (ii) consolidated and consolidating monthly profit and loss statements, balance sheets and cash flow projections for the Borrowers and their Subsidiaries (including all Foreign Subsidiaries), prepared in accordance with GAAP, for the 12-month period from the Closing Date forward, and on an annual basis for Fiscal Years ending December 31, 2000 and December 31, 2001;
(n) The Borrowers shall have delivered to the Agent a schedule of all fixed assets of the Credit Parties with a value greater than or equal to $250,000 (which schedule shall identify the net book value of such assets and identify the amounts of all liens and the identities of lien holders);
(o) The Agent shall be satisfied with the results of its checks on the suppliers and customers of the Borrowers and their Subsidiaries;
(p) The Agent shall be satisfied with the cash management arrangements (including domestic lock box arrangements) and management information systems in place with respect to the Borrowers and their Subsidiaries;
(q) The Agent shall be satisfied with its review of the Borrowers' and their Subsidiaries' Year 2000 MIS conversion and related matters;
(r) The Agent shall be satisfied with the arrangements between the Borrowers and their equipment lessors with respect to the Borrowers' equipment leases, which equipment leases are listed on Schedule 4.01(r) hereto;
(s) Immediately following the funding of the initial loans hereunder, the Borrowers shall have caused to be repaid in full all outstanding Indebtedness of CMC for borrowed money (other than Indebtedness permitted to remain outstanding under ss. 7.11) and shall have caused to be released all liens in favor of the holders of such Indebtedness;
(t) The Agent shall have received letters in form satisfactory to the Agent from the landlords of all real property leased by the Borrowers covering such matters as the Agent may reasonably request; and
(u) Not earlier than __ Banking Days prior to the Closing Date, the Agent shall have completed a takedown field examination of the Borrowers and the results thereof shall be satisfactory to the Agent.
Appears in 1 contract
