Conditions Precedent to the Initial. Revolving Advance and the Initial Letter of Credit. The Lender's obligation to make the initial Revolving Advance or to cause to be issued the initial Letter of Credit hereunder shall be subject to the condition precedent that the Lender shall have received all of the following, each in form and substance satisfactory to the Lender: (a) This Agreement, properly executed by the Borrower. (b) The Note, properly executed by the Borrower. (c) A true and correct copy of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such lease. (d) A true and correct copy of any and all agreements pursuant to which the Borrower's property is in the possession of any Person other than the Borrower, together with, in the case of any goods held by such Person for resale, (i) a consignee's acknowledgment and waiver of liens, (ii) UCC financing statements sufficient to protect the Borrower's and the Lender's interests in such goods, and (iii) UCC searches showing that no other secured party has filed a financing statement against such Person and covering property similar to the Borrower's other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect the Borrower's and the Lender's interests in the Borrower's goods from any claim by such secured party. (e) An acknowledgment and waiver of liens from each warehouse in which the Borrower is storing Inventory. (f) A true and correct copy of any and all agreements pursuant to which the Borrower's property is in the possession of any Person other than the Borrower, together with, (i) an acknowledgment and waiver of liens from each subcontractor who has possession of the Borrower's goods from time to time, (ii) UCC financing statements sufficient to protect the Borrower's and the Lender's interests in such goods, and (iii) UCC searches showing that no other secured party has filed a financing statement covering such Person's property other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect the Borrower's and the Lender's interests in the Borrower's goods from any claim by such secured party.
Appears in 1 contract
Conditions Precedent to the Initial. Revolving Advance and the Issuance of the Initial Letter of Credit. The Lender's obligation of each Lender to make the initial Revolving Advance under the Loans, or to cause to be issued issue the initial Letter of Credit hereunder shall be Credit, is subject to receipt by the condition precedent that the Lender shall have received all Administrative Agent of each of the following, each in form and substance satisfactory to the Administrative Agent, with a copy (except for the Notes) for each Lender:
(a) This a loan certificate of the Borrower certifying as to the accuracy of its representations and warranties in the Loan Papers, certifying that no Default or Event of Default has occurred under the terms of this Agreement, properly executed and including a certificate of incumbency with respect to each Authorized Officer, and containing a representation that the following items are attached thereto, and that each of such items remains unchanged and valid, except as shown on the attachments: (i) copies of the Articles of Incorporation of the Borrower and each of the Material Subsidiaries, certified to be true, complete and correct by the secretary of state of each such Person's respective state of incorporation, (ii) copies of the By-Laws of the Borrower and each of the Material Subsidiaries and (iii) copies of a certificate of good standing and a certificate of existence for the Borrower in Colorado and each of its Material Subsidiaries' state of incorporation, and other material states determined by the Borrower.
(b) The Note, properly duly executed Notes by the Borrower., payable to the order of each Lender, one Revolver A Note in an amount for each Lender equal to its Revolver A Specified Percentage of the Revolver A Commitment on the Closing Date, one Working Line Loan Note in an amount for each Lender equal to its Working Line Loan Specified Percentage of the Working Line Commitment on the Closing Date, and one Revolver B Note in an amount for each Lender equal to its Revolver B Specified Percentage of the Revolver B Commitment on the Closing Date;
(c) A a loan certificate of the Borrower certifying that a copy of the resolutions of the Borrower and the Guarantor, authorizing them to execute, deliver and perform this Agreement, the Notes and the other Loan Papers to which each of them is a party is attached and is a true and correct copy of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such lease.accurate copy;
(d) A in form and substance acceptable to the Administrative Agent, duly executed and completed Conditional Early Release Unlimited Guaranty of the Obligations by the Guarantor;
(e) copies of all executed Existing Financing Documentation, with a certificate attached thereto executed by an Authorized Officer of the Borrower certifying that the attached copies are true and correct copy accurate and have not been amended, waived or consented to except as set forth therein;
(f) all other Loan Papers to be delivered on the Closing Date duly executed and completed, dated the Closing Date;
(g) opinions addressed to Administrative Agent on behalf of any and all agreements pursuant to which the Borrower's property is in the possession Lenders of any Person other than the Borrower, together with, in the case of any goods held by such Person for resale, (i) a consignee's acknowledgment corporate counsel to the Borrower and waiver of lienseach Restricted Subsidiary, to the extent applicable, with respect to organizational matters, authorization, execution, etc., (ii) UCC financing statements sufficient special FCC counsel and/or PUC counsel to protect the Borrower's Borrower and the Lender's interests Restricted Subsidiaries, as applicable, in such goodsform reasonably acceptable to the Arranging Agents, and (iii) UCC searches showing corporate counsel to the Borrower and each Restricted Subsidiary, to the extent applicable, that the execution of this Agreement and the Loan Papers, the borrowing by the Borrower of the Loans (including, without limitation, the use of the proceeds of the Loans) and the performance of all its obligations under the Loan Papers are permitted by the Existing Financing Documentation and that the Loans are pari passu with the Existing Financing;
(h) a duly completed Compliance Certificate evidencing no other secured party has filed Default or Event of Default dated as of the Closing Date, and a financing statement against such Person and covering property similar to pro forma compliance certificate dated the Closing Date demonstrating the Borrower's other than compliance with each of the Borrowerfinancial covenants contained in Section 8.01 hereof through the Maturity Date, or if there exists any such secured party, evidence that each such secured party has received notice with supporting projections;
(i) a certificate from the Borrower and the Lender sufficient to protect the Borrower's and the Lender's interests stating that there has been no material adverse change in the Borrower's goods from any claim by such secured party.financial condition, business or operations of the Borrower and its Subsidiaries since December 31, 1998;
(ej) An acknowledgment and waiver of liens from each warehouse in which evidence reasonably satisfactory that the Borrower is storing Inventory.
(f) A true and correct copy each of any and all agreements pursuant to which the Borrower's property is in the possession of any Person other than the Borrower, together with, its Material Subsidiaries has (i) an acknowledgment undertaken such review and waiver assessment of liens from each subcontractor who has possession of the Borrower's goods from time its business and operations as it deems appropriate with respect to timeYear 2000 Compliance, (ii) UCC financing statements sufficient to protect the Borrower's developed an appropriate plan and the Lender's interests in such goodstimeline 50 for addressing Year 2000 Compliance issues on a timely basis, and (iii) UCC searches showing to date, implemented that no other secured party has filed a financing statement covering such Person's property other than the Borrower, or if there exists any such secured party, evidence plan substantially in accordance with that each such secured party has received notice from timetable;
(k) repayment of all Debt for Borrowed Money owed by the Borrower and the Lender sufficient Restricted Subsidiaries, except that Debt for Borrowed Money listed on Schedule -------- 8.02 hereto or otherwise permitted under Section 8.02 hereof; ---- (l)
(i) payment to protect the Borrower's Administrative Agent, Arranging Agents and Lenders of all fees due and payable as required in accordance with the terms of any Fee Letter or other written agreement among the parties, and (ii) reimbursement of the reasonable costs, fees and expenses (including the reasonable fees and expenses of Special Counsel) incurred by the Administrative Agent in connection with the negotiation, preparation and execution of this Agreement, the other Loan Papers and the Lender's interests in making of the Borrower's goods from any claim by such secured party.initial Loans; and
Appears in 1 contract
Samples: Credit Agreement (Qwest Communications International Inc)
Conditions Precedent to the Initial. Revolving Advance to, and Letters of Credit on behalf of, the Initial Letter of CreditBorrower. The Lender's obligation of each Lender to make the initial Revolving Advance or to cause the Borrower, and the obligation of the Issuing Bank to be issued issue the initial Letter of Credit hereunder shall be on behalf of, the Borrower is subject to receipt by the condition precedent that the Administrative Lender shall have received all of each of the following, each in form and substance satisfactory to the Administrative Lender, with a copy (except for the Notes) for each Lender:
(a) This a loan certificate of the Borrower certifying as to the incumbency of each Authorized Signatory, and including (i) a copy of the Articles of Incorporation of the Borrower, certified to be true, complete and correct by the secretary of state of its state of incorporation, (ii) a copy of the By-Laws of the Borrower, as in effect on the Agreement Date, (iii) a copy of the resolutions of the Borrower authorizing it to execute, deliver and perform this Agreement, properly executed by the Borrower.Notes, and the other Loan Documents to which it is a party, and (iv) a copy of a certificate of good standing and a certificate of existence, as applicable, for its state of incorporation and a certificate of authority to do business for each state in which it is qualified to do business;
(b) The Notefor each Subsidiary, properly executed a certificate of an officer acceptable to the Lenders of each such Subsidiary, certifying as to the incumbency of the officers signing the Loan Documents to which it is a party, and including (i) a copy of its Articles of Incorporation, certified as true, complete and correct by the Borrower.secretary of state of its state of incorporation, (ii) a copy of its By-Laws, as in effect on the Agreement Date, (iii) a copy of the resolutions authorizing it to execute, deliver and perform the Loan Documents to which it is a party, and (iv) a copy of a certificate of good standing and a certificate of existence, as applicable, for its state of incorporation and certificate of authority to do business in each state in which it is qualified to do business;
(c) A true duly executed Notes, payable to the order of each Lender and correct copy in an amount for each Lender equal to its Specified Percentage of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such lease.Commitment;
(d) A true a Borrower Pledge Agreement, duly executed and correct copy of any and all agreements pursuant to which completed by the Borrower's property is , dated as of the Agreement Date, granting the Lenders a first priority Lien and security interest in (i) the Pledged Stock owned directly by the Borrower (together with related, blank, undated stock powers) and (ii) Intercompany Notes evidencing intercompany advances made, or to be made, by the Borrower to Subsidiaries, together with related UCC-1 financing statements;
(e) duly executed and completed Subsidiary Pledge Agreements, dated as of the Agreement Date, granting the Lenders a first priority Lien and security interest in the possession (i) Pledged Stock owned directly by each Subsidiary (together with related, blank, undated stock powers), and (ii) Intercompany Notes evidencing intercompany advances made, or to be made, each Subsidiary to other Subsidiaries, together with related UCC-1 financing statements;
(f) a duly executed and completed Borrower Security Agreement, dated as of any Person other than the Agreement Date, granting the Lenders a first priority Lien and security interest in (i) the Accounts of the Borrower and (ii) the tangible personal property of the Borrower, together withwith related UCC-1 financing statements;
(g) a duly executed and completed Subsidiary Security Agreement, dated as of the Agreement Date, granting the Lenders a first priority Lien and security interest in (i) the Accounts of each Subsidiary and (ii) the tangible personal property of each Subsidiary, together with related UCC-1 financing statements;
(h) the Pledged Stock, together with stock powers duly executed in blank;
(i) the Intercompany Notes, duly endorsed;
(j) a duly executed and completed Subsidiary Guaranty, dated as of the Agreement Date executed by each Subsidiary;
(k) the Borrower shall have received Net Cash Proceeds of at least $40,000,000 from an initial public offering of its capital stock;
(l) copies of insurance binders or certificates covering the assets of the Borrower and the Subsidiaries, and meeting the requirements of Section 5.5 hereof;
(m) reimbursement for Administrative Lender for Special Counsel's reasonable fees and expenses rendered through the Agreement Date;
(n) evidence that all corporate proceedings of the Borrower and the Subsidiaries taken in connection with the transactions contemplated by this Agreement and the other Loan Documents shall be reasonably satisfactory in form and substance to the Lenders and Special Counsel; and the Lenders shall have received copies of all documents or other evidence which the Administrative Lender, Special Counsel or any Lender may reasonably request in connection with such transactions;
(o) copies of the following combined financial statements for the Borrower and its Subsidiaries, as of and for the period ended June 30, 1996: (i) combined balance sheets as of the end of such period, and (ii) combined statements of income and changes in cash for such period; which financial statements shall set forth in comparative form figures for the corresponding periods in the case previous fiscal year, all in reasonable detail and certified by an Authorized Signatory to the best of any goods held by his knowledge to be complete and correct and prepared in accordance with GAAP (other than footnotes thereto), subject to year-end adjustment;
(p) the fees as required pursuant to Section 2.4(b) hereof;
(q) opinions of counsel to the Borrower and the Subsidiaries addressed to the Lenders and in form and substance reasonably satisfactory to the Lenders, dated the Agreement Date;
(r) UCC-11 searches in appropriate jurisdictions where Collateral is located;
(s) a duly completed and executed Compliance Certificate dated as of the Agreement Date;
(t) the corporate organization of the Borrower shall have been reorganized such Person for resalethat as of the Closing Date, (i) a consignee's acknowledgment the Borrower shall own 100% of the outstanding capital stock of Metro Traffic Control, Inc. and waiver of liens, (ii) UCC financing statements sufficient to protect each of Metro Video News, Inc., Metro Reciprocal, Inc., Metro Networks, Ltd. and MTC GP, Inc. and each of its Subsidiaries shall have been consolidated into Metro Traffic Control, Inc.;
(u) simultaneously with the Borrower's and making of the Lender's interests in such goodsinitial Advance or the issuance of the initial Letter of Credit, and (iii) UCC searches showing that no other secured party has filed a financing statement against such Person and covering property similar to the Borrower's other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect the Borrower's and the Lender's interests in the Borrower's goods from any claim by such secured party.
(e) An acknowledgment and waiver of liens from each warehouse in which the Borrower is storing Inventory.
(f) A true and correct copy of any and all agreements pursuant to which the Borrower's property is in the possession of any Person other than the Borrower, together with, shall cause (i) an acknowledgment all outstanding Indebtedness, interest, fees and waiver of liens from each subcontractor who has possession of expenses under the Borrower's goods from time Prior Credit Agreement to time, be paid in full and (ii) UCC financing statements sufficient the commitment of the lenders thereunder to protect the Borrower's make advances, and the Lender's interests issuing bank thereunder to issue letters of credit, to terminate; and
(v) in form and substance satisfactory to the Lenders and Special Counsel, such goodsother documents, instruments and certificates as the Administrative Lender may reasonably require in connection with the transactions contemplated hereby, including without limitation the status, organization or authority of the Borrower or any Subsidiary, and (iii) UCC searches showing that no other secured party has filed a financing statement covering such Person's property other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from enforceability of and security for the Borrower and the Lender sufficient to protect the Borrower's and the Lender's interests in the Borrower's goods from any claim by such secured partyObligation.
Appears in 1 contract
Conditions Precedent to the Initial. Revolving Advance and the Issuance of the Initial Letter of Credit. The Lender's obligation of each Lender to make the initial Revolving Advance under the Loans, or to cause to be issued issue the initial Letter of Credit hereunder shall be Credit, is subject to receipt by the condition precedent that the Lender shall have received all Administrative Agent of each of the following, each in form and substance satisfactory to the Administrative Agent, with a copy (except for the Notes) for each Lender:
(a) This a loan certificate of the Borrower certifying as to the accuracy of its representations and warranties in the Loan Papers, certifying that no Default or Event of Default has occurred under the terms of this Agreement, properly executed and including a certificate of incumbency with respect to each Authorized Officer, and containing a representation that either the following items are attached thereto or have not been changed or amended since the certificate delivered on the Original Closing Date in connection with the Original Credit Agreement, and that each of such items remains unchanged and valid, except as shown on any attachments: (i) copies of the Articles of Incorporation of the Borrower and each of the Qwest Material Subsidiaries, certified to be true, complete and correct by the secretary of state of each such Person's respective state of incorporation, (ii) copies of the By-Laws of the Borrower and each of the Qwest Material Subsidiaries and (iii) copies of a certificate of good standing and a certificate of existence for the Borrower in Delaware and each of the Qwest Material Subsidiaries' state of incorporation, and other material states determined by the Borrower.;
(b) The Notein form and substance acceptable to the Administrative Agent, properly a duly executed and completed acknowledgment and affirmation of the Conditional Early Release Unlimited Guaranty of the Obligations by the Borrower.Guarantor;
(c) A a loan certificate of the Borrower certifying that a copy of the resolutions of the Borrower and the Guarantor, authorizing them to execute, deliver and perform this Agreement, the Notes and the other Loan Papers to which each of them is a party is attached and is a true and correct copy of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such lease.accurate copy;
(d) A copies of all amendments, if any, with respect to the Existing Financing Documentation entered into prior to the Amendment and Restatement Closing Date but after the date of the Original Credit Agreement, with a certificate attached thereto executed by an Authorized Officer of the Borrower certifying that the attached copies are true and correct copy accurate and have not been amended, waived or consented to except as set forth therein;
(e) all other Loan Papers to be delivered on the Amendment and Restatement Closing Date duly executed and completed, dated the Amendment and Restatement Closing Date;
(f) opinions addressed to Administrative Agent on behalf of any the Lenders dated the Amendment and all agreements pursuant to which the Borrower's property is in the possession Restatement Closing Date of any Person other than the Borrower, together with, in the case of any goods held by such Person for resale, (i) a consignee's acknowledgment corporate counsel to the Borrower and waiver of lienseach Restricted Subsidiary, to the extent applicable, with respect to organizational matters, authorization, execution, etc., (ii) UCC financing statements sufficient special FCC counsel and/or PUC counsel to protect the Borrower's Borrower and the Lender's interests Restricted Subsidiaries, as applicable, in such goodsform reasonably acceptable to the Arranging Agents, and (iii) UCC searches showing that no other secured party has filed a financing statement against such Person and covering property similar corporate counsel to the Borrower's other than Borrower and each Restricted Subsidiary, to the Borrowerextent applicable, or if there exists any such secured partythat the execution of this Agreement and the Loan Papers, evidence the borrowing by the Borrower of the Loans (including, without limitation, the use of the proceeds of the Loans) and the performance of all its obligations under the Loan Papers are permitted by the Existing Financing Documentation and that each such secured party has received notice the Loans are pari passu with the Existing Financing;
(g) a certificate from the Borrower and the Lender sufficient to protect the Borrower's and the Lender's interests stating that there has been no material adverse change in the Borrower's goods from any claim by such secured party.financial condition, business or operations of the Borrower and its Subsidiaries since December 31, 1998;
(eh) An acknowledgment payment to the Administrative Agent, Arranging Agents and waiver Lenders of liens from each warehouse all fees due and payable as required in which accordance with the Borrower is storing Inventory.
(f) A true and correct copy terms of any and all agreements pursuant to which Fee Letter or other written agreement among the Borrower's property is in the possession of any Person other than the Borrower, together with, parties; and
(i) an acknowledgment in form and waiver of liens from each subcontractor who has possession substance satisfactory to the Arranging Agents, such other documents, instruments and certificates as the Administrative Agent or any Arranging Agent may reasonably require in connection with the transactions contemplated hereby, including without limitation the status, organization or authority of the Borrower's goods from time to time, (ii) UCC financing statements sufficient to protect the Borrower's and the Lender's interests in such goods, and (iii) UCC searches showing that no other secured party has filed a financing statement covering such Person's property other than the Borrower, Borrower or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect the Borrower's and the Lender's interests in the Borrower's goods from any claim by such secured partyRestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Qwest Communications International Inc)
Conditions Precedent to the Initial. Revolving Advance and the Issuance of the Initial Letter of Credit. The Lender's obligation of each Lender to make the initial Advance under the Revolving Advance Loan, or to cause to be issued issue the initial Letter of Credit hereunder shall be Credit, is subject to receipt by the condition precedent that the Administrative Lender shall have received all of each of the following, each in form and substance satisfactory to the Administrative Lender, with a copy (except for the Notes) for each Lender:
(a) This A loan certificate of the Borrower certifying as to the accuracy of its representations and warranties in the Loan Papers, certifying that no Default or Event of Default (as defined in the Original Credit Agreement) has occurred under the Original Credit Agreement and/or under this Agreement, properly executed and including a certificate of incumbency with respect to each Authorized Officer, and including a representation that the following items delivered in connection with the Original Credit Agreement are unchanged and remain valid: (i) copies of the Articles of Incorporation of the Parent, the Borrower and each of its Subsidiaries, which were certified to be true, complete and correct by the Borrower.secretary of state of each such Person's respective state of incorporation, (ii) copies of the By-Laws of the Parent, the Borrower and each of its Subsidiaries, (iii) copies of certain contracts identified to the Administrative Lender, each certified to be true, complete and correct by an Authorized Officer, and (v) copies of a certificate of good standing and a certificate of existence for the Parent, the Borrower and each of its Subsidiaries state of incorporation and the States of Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, North Carolina and South Carolina, as applicable;
(b) The Noteduly executed Notes, properly executed by payable to the Borrower.order of each Lender, one in an amount for each Lender equal to its Specified Percentage of the Commitment;
(c) A a loan certificate of the Borrower certifying that a copy of the resolutions of the Parent, the Borrower and each of its Subsidiaries authorizing them to execute, deliver and perform this Agreement, the Notes and the other Loan Papers to which each of them is a party is attached and is a true and correct copy of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such lease.accurate copy;
(d) A true duly executed and correct copy completed affirmations, in form and substance acceptable to the Administrative Lender of: (i) pledge agreement by Parent, the Borrower and, to the extent applicable, each Subsidiary of any and all agreements pursuant to which the Borrower's property is in the possession of any Person other than the Borrower, together with(ii) Unlimited Guaranty of the Obligations by the Parent and each of the Subsidiaries of the Borrower and (iii) all security agreements, mortgages, deeds of trust, assignment agreements, and other collateral agreements by the Parent, the Borrower and any Subsidiary of the Borrower, executed in connection with the case Original Credit Agreement;
(e) all other Loan Papers to be delivered on the Effective Date duly executed and completed, dated after the Closing Date but on or before the Effective Date;
(f) opinions addressed to Administrative Lender on behalf of the Lenders of corporate counsel to the Parent, the Borrower and each Subsidiary of the Borrower, addressed to the Administrative Lender on behalf of the Lenders and in form and substance satisfactory to the Lenders, dated after the Closing Date but on or before the Effective Date;
(g) reimbursement for Administrative Lender of its reasonable fees and expenses and for Special Counsel's reasonable fees and expenses rendered through the Effective Date;
(h) evidence that all corporate proceedings of the Parent, the Borrower and each Subsidiary of the Borrower taken in connection with the transactions contemplated by this Agreement and the other Loan Papers, shall be reasonably satisfactory in form and substance to the Lenders and Special Counsel; and the Lenders shall have received copies of all documents or other evidence which the Administrative Lender, Special Counsel or any goods held by Lender may reasonably request in connection with such Person for resale, transactions;
(i) a consignee's acknowledgment duly completed Compliance Certificate evidencing no Default or Event of Default dated as of the Effective Date;
(j) The 1998 Senior Notes shall have been issued by the Parent in form and waiver substance acceptable to the Administrative Lender, and cash proceeds of liens, not less than $95,000,000 shall have been received by the Parent. The Borrower shall have received an equity contribution from the Parent in an amount not less than the greater of (i) the net proceeds of the 1998 Senior notes issuance and (ii) UCC financing statements sufficient to protect the Borrower's $95,000,000.; and
(k) in form and the Lender's interests in such goods, and (iii) UCC searches showing that no other secured party has filed a financing statement against such Person and covering property similar substance satisfactory to the Borrower's Lenders and Special Counsel, such other than documents, instruments and certificates as the Administrative Lender or any Lender may reasonably require in connection with the transactions contemplated hereby, including without limitation the status, organization or authority of the Parent, the Borrower or any Subsidiary of the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect enforceability of and security for the Borrower's and the Lender's interests in the Borrower's goods from any claim by such secured partyObligations.
(e) An acknowledgment and waiver of liens from each warehouse in which the Borrower is storing Inventory.
(f) A true and correct copy of any and all agreements pursuant to which the Borrower's property is in the possession of any Person other than the Borrower, together with, (i) an acknowledgment and waiver of liens from each subcontractor who has possession of the Borrower's goods from time to time, (ii) UCC financing statements sufficient to protect the Borrower's and the Lender's interests in such goods, and (iii) UCC searches showing that no other secured party has filed a financing statement covering such Person's property other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect the Borrower's and the Lender's interests in the Borrower's goods from any claim by such secured party.
Appears in 1 contract
Samples: Credit Agreement (Itc Deltacom Inc)
Conditions Precedent to the Initial. Revolving Advance and the Initial Letter ----------------------------------------------------------- Issuance of Letters of Credit. The Lender's obligation of each Lender to make any Advance ----------------------------- and the initial Revolving Advance or obligation of the Issuing Bank to cause issue Letters of Credit is subject to (i) receipt by the Administrative Lender of the following items which are to be issued delivered, in form and substance satisfactory to each Lender, with a copy (except for the initial Letter Notes and this Agreement) for each Lender, and (ii) satisfaction of Credit hereunder shall the following conditions which are to be subject satisfied:
(a) A loan certificate of each Obligor certifying as to the condition precedent accuracy of its representations and warranties in the Loan Documents, certifying that the Lender shall have received all no Default has occurred, and including a certificate of incumbency with respect to each Authorized Signatory, and including (i) a copy of the followingarticles or certificate of incorporation of such Obligor, certified to be true, complete and correct by the secretary of state of its state of organization, and (ii) a copy of a certificate of good standing and a certificate of existence for its state of organization and, with respect to the Borrower, the States of Texas, California and New Jersey;
(b) a duly executed Facility A Note and Facility B Note payable to the order of each Lender and in an amount for each Lender equal to its Specified Percentage of each Commitment, respectively;
(c) UCC searches in appropriate jurisdictions where Collateral is located;
(d) opinions of counsel to each Obligor addressed to the Lenders and in form and substance satisfactory to the Lender:
(a) This AgreementLenders, properly executed by dated the Borrower.
Agreement Date, and covering certain of the matters set forth in Sections 4.1(a), (b) The Note), properly executed by the Borrower.
(c) A true and correct copy of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such lease.
(d) A true and correct copy of any and all agreements pursuant to which the Borrower's property is in the possession of any Person other than the Borrower, together with, in the case of any goods held by such Person for resale), (i) a consignee's acknowledgment and waiver of liense), --------------- --- --- --- (f), (iih), (m), (n), (o) UCC financing statements sufficient to protect the Borrower's and the Lender's interests in such goods, and (iiip) UCC searches showing that no and such other secured party has filed a financing statement against such Person and covering property similar matters incident to the Borrower's other than --- --- --- --- --- --- transactions contemplated hereby as the Borrower, Administrative Lender or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect the Borrower's and the Lender's interests in the Borrower's goods from any claim by such secured party.Special Counsel may reasonably request;
(e) An acknowledgment reimbursement for the Administrative Lender for Special Counsel's reasonable and waiver of liens from each warehouse in which customary fees (on an hourly basis) and expenses rendered through the Borrower is storing Inventory.date hereof, to the extent invoiced;
(f) A true evidence that all proceedings of each Obligor taken in connection with the transactions contemplated by this Agreement and correct copy the other Loan Documents shall be reasonably satisfactory in form and substance to the Lenders and Special Counsel; and the Lenders shall have received copies of all documents or other evidence which the Administrative Lender, Special Counsel or any and all agreements Lender may reasonably request in connection with such transactions;
(g) any fees or expenses required to be paid on or before the Agreement Date pursuant to which the Borrower's property is Administrative Lender Fee Letter and/or the Upfront Fee Letter;
(h) duly executed and completed Security Agreements, dated as of the Agreement Date, granting a Lien, in the possession of any Person other than the Borrowerall Collateral covered thereby, together withwith related financing statements, the CFI Note and the ClientLink Note duly endorsed, and insurance certificates listing Administrative Lender as loss payee and additional insured and otherwise in a form required by the Collateral Documents;
(i) an acknowledgment and waiver of liens from each subcontractor who has possession the duly executed Swing Line Note payable to the order of the Borrower's goods from time Swing Line Bank in the aggregate principal amount of $5,000,000;
(j) a duly executed completed Pledge Agreement, dated as of the Agreement Date, granting a Lien in all Collateral covered thereby, together with related financing statements, stock powers and stock certificates evidencing ownership of CFI;
(k) simultaneously with the making of the initial Advance, executed UCC-3 Termination Statements to time, (ii) UCC financing statements sufficient be filed in appropriate jurisdictions to protect the Borrower's and the Lender's interests in such goods, and (iii) UCC searches showing that no other secured party has filed a financing statement covering such Person's property other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from terminate all Liens against assets of the Borrower and its Subsidiaries other than Permitted Liens;
(l) all Securitization Documents, which shall be on terms and conditions acceptable to the Administrative Lender, including any amendments and modifications thereto as the Administrative Lender sufficient to protect determines are necessary as a result of the Borrower's transactions contemplated by this Agreement and the Lender's interests other Loan Documents;
(m) there shall have occurred no material adverse change in the Borrower's goods from any claim by such secured party.business, assets or financial condition of the Borrower and its Subsidiaries, taken as a whole, since the date of the financial statements referred to in Section ------- 4.1
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Conditions Precedent to the Initial. Revolving Advance and the Issuance of the Initial Letter of Credit. The Lender's obligation of each Lender to make the initial Revolving Advance under the Loan, or to cause to be issued issue the initial Letter of Credit hereunder Credit, (whichever shall be occur first) is subject to receipt by the condition precedent that the Lender shall have received all Administrative Agent of each of the following, each in form and substance satisfactory to the Administrative Agent, with a copy (except for the Notes) for each Lender:
(a) This a loan certificate of each Borrower certifying as to the accuracy of its representations and warranties in the Loan Papers, certifying that no Default or Event of Default has occurred under the terms of this Agreement, properly executed and including a certificate of incumbency with respect to each Authorized Officer, and containing a representation that the following items are attached thereto, and that each of such items remains unchanged and valid, except as shown on the attachments: (i) copies of the Articles of Incorporation or Memorandum of Association of each Borrower, each United States Subsidiary, and certain of the Subsidiaries located in the United Kingdom, Germany, Japan, Australia and New Zealand, certified to be true, complete and correct by the Borrower.secretary of state of each such Person's respective state or country of organization as described on Schedule 5.01, (ii) copies of the By-Laws (or bye-laws) of each Borrower and ------------- each of the Subsidiaries referenced in (i) above and (iii) copies of a certificate of good standing and a certificate of existence for the Borrowers and each Subsidiary referenced in (i) above in their state or country of organization and each other state or country in which they are required to be authorized to do business;
(b) The Noteduly executed Notes by each Borrower, properly executed by payable to the Borrower.order of each Lender, equal to its Applicable Revolver Specified Percentage of the Commitments on the Closing Date;
(c) A a loan certificate of each Borrower certifying that a copy of the resolutions of such Borrower and each of the Subsidiaries authorizing such entity to execute, deliver and perform this Agreement, the Notes and the other Loan Papers to which each such entity is a party is attached and is a true and correct copy of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such lease.accurate copy;
(d) A true in form and correct copy substance acceptable to the Administrative Agent, duly executed and completed Unlimited Guaranty of any the Obligations by each of the Guarantors;
(e) in form and all agreements pursuant substance acceptable to which the Borrower's property is Administrative Agent, a duly executed and completed pledge agreement or share charge by the Domestic Borrower pledging or charging 66% of the Capital Stock of the Foreign Borrower to secure the Domestic Revolver Loan;
(f) in form and substance acceptable to the possession Administrative Agent, a duly executed and completed pledge agreement by the Domestic Borrower pledging 100% of any Person other than the BorrowerCapital Stock of the Domestic DB Subsidiaries of the Domestic Borrower to secure the Domestic Revolver Loan;
(g) in form and substance acceptable to the Administrative Agent, a duly executed and completed pledge agreement or share charge by the applicable Obligor pledging or charging 100% of the Capital Stock of the FB Subsidiaries owned by such Obligor and 100% of the Capital Stock of the Foreign DB Subsidiary owned by such Obligor to secure the Foreign Revolver Loan;
(h) original stock or membership certificates, as applicable, constituting the pledged Capital Stock of the Subsidiaries as described in (e), (f) and (g) above, together with, with stock powers executed in blank and UCC filings requested by the case of any goods held by such Person for resale, Administrative Agent;
(i) in form and substance acceptable to the Administrative Agent, a consigneeduly executed and completed security agreement and U.C.C. financing statements by the Domestic Borrower and each of the Domestic DB Subsidiaries of the Domestic Borrower pledging the tangible and intangible assets of such entities to secure the Domestic Revolver Loan;
(j) in form and substance acceptable to the Administrative Agent, a duly executed and completed security agreement and U.C.C. financing statements by the Domestic Borrower, Foreign Borrower and each Approved Subsidiary pledging the tangible and intangible assets of such entities to secure the Foreign Revolver Loan;
(k) Unlimited Guarantys executed by each of the Guarantors as set forth in Section 2.16 hereof;
(l) payment in full by the Borrowers to the Administrative Agent in immediately available funds of the fees which are then due, as described in the Fee Letter;
(m) all other Loan Papers to be delivered on the Closing Date duly executed and completed, dated the Closing Date;
(n) opinions addressed to Administrative Agent on behalf of the Lenders of (i) corporate counsel to the Borrowers, each Domestic DB Subsidiary and foreign counsel for certain Subsidiaries located in the United Kingdom, Germany, Japan, Australia and New Zealand as described on Schedule 1.02 with respect to ------------- organizational matters, due authorization, execution, etc., no violation of law or material agreement, and the validity and enforceability under New York law and (ii) special FCC counsel and/or PUC counsel to the Borrowers and the Subsidiaries, as applicable, with respect to the Licenses of the Borrowers and the Subsidiaries and the transactions contemplated hereby, each in form and substance acceptable to the Administrative Agent;
(o) assignability of the MFN and the Xxxxxxxx cable IRU contracts on conditions satisfactory to the Administrative Agent;
(p) opinion of counsel to Borrowers in a form acceptable to Administrative Agent confirming Borrowers' and their applicable Subsidiaries' ability to transfer to a third party cable rights held by Borrowers and their Subsidiaries without the consent of any consortium group member as a result of the sale of 100% of the Capital Stock of the entities holding any cable rights;
(q) in form and substance acceptable to Administrative Agent, written agreements from identified cable consortiums to provide Administrative Agent written notice of any default or event of default with respect to cable contracts together with an opportunity to cure any such default or event of default;
(r) reimbursement for Administrative Agent with respect to its reasonable fees and expenses and for Special Counsel's acknowledgment reasonable fees and waiver expenses rendered through the Closing Date;
(s) evidence that all corporate proceedings of liensthe Borrowers and each of their Subsidiaries has taken place in connection with the transactions contemplated by this Agreement and the other Loan Papers, shall be reasonably satisfactory in form and substance to the Lenders and Special Counsel; and the Lenders shall have received copies of all documents or other evidence which the Administrative Agent, Special Counsel or any Lender may reasonably request in connection with such transactions;
(t) copies of all UCC searches of all Properties of the Borrowers and the domestic Subsidiaries showing no Liens except Permitted Liens and Liens permitted under Section 8.03(b) hereof and similar evidence for lack of Liens on property of each of the foreign Subsidiaries in the United Kingdom, Germany, Japan, Australia and New Zealand;
(u) a duly completed Compliance Certificate evidencing no Default or Event of Default dated as of the Closing Date for the most recently ended fiscal quarter;
(v) a certificate from the Borrowers stating that there has been no Material Adverse Change in the financial condition, business, operations, or prospects of the Borrowers and their Subsidiaries since December 31, 1998 other than as disclosed through SEC filings;
(w) evidence satisfactory that the Borrowers and each of their Subsidiaries has (i) undertaken a detailed review and assessment of all areas within its business and operations that could be adversely affected by the "Year 2000 Problem" (that is, the risk that computer applications used by the Borrowers and their Subsidiaries may be unable to recognize and perform properly date-sensitive functions involving certain dates prior to and any date after December 31, 1999), (ii) UCC financing statements sufficient to protect developed a detailed plan and timeline for addressing the Borrower's and the Lender's interests in such goodsYear 2000 Problem on a timely basis, and (iii) UCC searches showing to date, implemented that no other secured party has filed plan in accordance with that timetable, (iv) reasonably anticipated that all computer applications that are material to their business and operations will on a financing statement against timely basis be able to perform properly date-sensitive functions and (v) made an inquiry of each of their key suppliers, vendors and customers as to whether such Person Persons will on a timely basis be Year 2000 compliant in all material respects and, on the basis of that inquiry, believe that all such Persons will be so compliant; and
(x) in form and covering property similar substance satisfactory to the Borrower's Lenders and Special Counsel, such other than documents, instruments and certificates as the BorrowerAdministrative Agent or any Lender may reasonably require in connection with the transactions contemplated hereby, including without limitation the status, organization or if there exists authority of the Borrowers or any such secured party, evidence that each such secured party has received notice from the Borrower Subsidiary and the Lender sufficient to protect enforceability of and security for the Borrower's and the Lender's interests in the Borrower's goods from any claim by such secured partyObligations.
(e) An acknowledgment and waiver of liens from each warehouse in which the Borrower is storing Inventory.
(f) A true and correct copy of any and all agreements pursuant to which the Borrower's property is in the possession of any Person other than the Borrower, together with, (i) an acknowledgment and waiver of liens from each subcontractor who has possession of the Borrower's goods from time to time, (ii) UCC financing statements sufficient to protect the Borrower's and the Lender's interests in such goods, and (iii) UCC searches showing that no other secured party has filed a financing statement covering such Person's property other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect the Borrower's and the Lender's interests in the Borrower's goods from any claim by such secured party.
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