Conditions Precedent to the. Initial Advance and Issuance of the Initial Letter of Credit. The obligation of the Lender Group to make the initial Advance and to issue the initial Letters of Credit is subject to the fulfillment, to the satisfaction of the Lender Group and its counsel, of each of the following conditions on or before the Closing Date: (a) the Closing Date shall occur on or before April 30, 2002; (b) Agent shall have filed all financing statements required by Agent, duly executed by the applicable Borrowers, and Agent shall have received searches reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect: (i) the Parent Pledge Agreement, (ii) the ZB Trademark Security Agreement, (iii) the Xxxxxxx Trademark Security Agreement, (iv) the Vendex Intercreditor Agreement, (v) the Athanor Intercreditor Agreement, (vi) the PNC Intercreditor Agreement, (vii) any Participation Agreement, (viii) the Fee Letter, (ix) the Cash Management Agreements, and (x) the Credit Card Agreements. (d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors, authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers is a party and authorizing specific officers or directors of Borrowers to execute the same; (e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower; (f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction; (g) Agent shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions; (h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions; (i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower; (j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel; (k) Agent shall have received an opinion or opinions of Borrowers' counsel in form and substance satisfactory to Agent in its sole discretion; (l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date; (m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case; (n) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with the proceeds of the initial Advances hereunder; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent; (p) Agent shall have received the Business Plan, in form and substance acceptable to Agent; (q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings; (r) Agent shall have received the Operations Plan, in form and substance satisfactory to Agent; (s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and (t) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent and its counsel.
Appears in 2 contracts
Samples: Loan and Security Agreement (Fao Inc), Loan and Security Agreement (Right Start Inc /Ca)
Conditions Precedent to the. Initial Advance Lenders' and Issuance the Agents' Obligation to Execute and Deliver this Agreement and the Lenders' obligation to Make the Loan. The Lenders' and the Agents' obligation to execute and deliver this Agreement and, in the case of the Initial Letter of Credit. The obligation of Lenders, to fund the Lender Group to make the initial Advance and to issue the initial Letters of Credit Loan is subject to the fulfillmentsatisfaction, in accordance with the terms thereof, prior to or concurrently with the satisfaction of Lenders' and the Lender Group Agents' execution and its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before April 30, 2002;
(b) Agent shall have filed all financing statements required by Agent, duly executed by the applicable Borrowers, and Agent shall have received searches reflecting the filing of all such financing statements;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Parent Pledge Agreement,
(ii) the ZB Trademark Security Agreement,
(iii) the Xxxxxxx Trademark Security Agreement,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors, authorizing its execution, delivery, and performance delivery of this Agreement and the making by the Lenders of the Loan, of all conditions and requirements set forth in the Loan Commitment Letter (including, without limitation, Exhibits A and B thereto). Borrower hereby acknowledges and agrees that notwithstanding the execution and delivery by GSMC of that certain Take Out Lender/Construction Lender Agreement dated as of November 12, 1999 between Mall Construction Lender and GSMC (acknowledged and agreed to by LVSI, Venetian, Mall Construction, Grand Canal and Principal)(the "Take Out Lender/Construction Lender Agreement"), and notwithstanding the fact that the Lenders may fund the Loan while one or more Default(s) or Event(s) of Default exist (including, without limitation, any Default(s) or Event(s) of Default under Section 7.1(xix) hereof relating to the Construction Litigation (as defined in the Take Out Lender/Construction Lender Agreement) and regardless of whether such Default(s) or Event(s) of Default shall be known to any Lender or Agent at the time of such funding), neither such execution and delivery nor such funding shall constitute a waiver of such Default(s) or Event(s) of Default, and, at any time after funding the Loan during which any Default or Event of Default shall exist, the Lenders and Agents shall be entitled to exercise any and all rights and remedies afforded the Agents and Lenders under the Loan Documents, at law or in equity (subject to the provisions of Section 9.5 hereof). From and after the funding of the Loan hereunder, neither GSMC nor any other Loan Documents to which such Borrowers is a party and authorizing specific officers or directors of Borrowers to execute the same;
(e) Agent thereto nor any other party hereto shall have received copies of each Borrower's Governing Documents(or be deemed to have) any further obligations under the Loan Commitment Letter, as amended, supplemented or otherwise modified, or the Tri-Party Agreement (as defined in the Loan Commitment Letter), as amended, supplemented or otherwise modified, except to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate extent that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(k) Agent shall have received an opinion or opinions of Borrowers' counsel in form and substance satisfactory to Agent in its sole discretion;
(l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, obligations of Borrower or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
(n) All obligations (including principal, accrued interest and fees) owing any Affiliate of Borrower under the TRS Loan Commitment Letter and/or the Tri-Party Agreement to WFRF and under by their terms survive the ZB Loan Agreement to the lenders thereunder shall have been paid in full with the proceeds expiration of the initial Advances hereunder;
(o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to Loan Commitment Letter or the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Tri-Party Agreement, includingas amended, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations Plan, in form and substance satisfactory to Agent;
(s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, supplemented or recorded and shall be in form and substance satisfactory to Agent and its counselotherwise modified.
Appears in 1 contract
Samples: Loan Agreement (Las Vegas Sands Inc)
Conditions Precedent to the. Initial Advance and Issuance of the Initial Letter of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advance and or to issue the initial Letters Letter of Credit is subject to the fulfillment, to the satisfaction of the Lender Group Agent, each Lender, and its their respective counsel, of each of the following conditions on or before the Closing Date:
: (a) the Closing Date shall occur on or before April 30September 15, 2002;
1998; (b) Agent Borrower shall have filed delivered all financing statements and fixture filings required by Agentthe Lender Group in the name of Agent for the benefit of the Lender Group, duly executed by the applicable BorrowersBorrower, and Agent each Lender, to the extent it so requires, shall have received searches reflecting the filing of all such financing statements;
statements and fixture filings; (c) Agent Each Lender, to the extent is so requires, shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
: (i) the Parent Pledge Agreement,
Lockbox Agreements (subject to Section 3.3(g)); (ii) the ZB Trademark Security Funds Flow Agreement,
; (iii) the Xxxxxxx Trademark Security Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower that exist or existed with respect to the financing by Existing Lender that preceded this Agreement,
; (iv) the Vendex Intercreditor Agreement,
Warrants; (v) the Athanor Intercreditor Agreement,
; and (vi) the PNC Intercreditor Deposit Account Security Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.
; (d) Agent Each Lender, to the extent it so requires, shall have received a certificate from the Secretary Clerk of each Borrower attesting to the resolutions of such Borrower's Board of Directors, Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers Borrower is a party and authorizing specific officers or directors of Borrowers Borrower to execute the same;
; (e) Agent Each Lender, to the extent it so requires, shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary Clerk of such Borrower;
; (f) Agent Each Lender, to the extent it so requires, shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
; (g) Agent Each Lender, to the extent it so requires, shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
; (h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect Each Lender, to such Borrowerthe extent it so requires, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.96.10, the form and substance of which shall be satisfactory to Agent Agent, each Lender, and its their respective counsel;
; (i) Each Lender, to the extent it so requires, shall have received stock certificates evidencing 100% of the issued and outstanding shares of VA Sub or copies thereof, together with blank stock powers executed by Borrower with respect thereto; (j) [Intentionally omitted]; (k) Agent Each Lender, to the extent it so requires, shall have received an opinion or opinions of Borrowers' Borrower's counsel in form and substance satisfactory to Agent and each Lender in its their sole discretion;
; (l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
[Intentionally omitted]; (m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
[Intentionally omitted]; (n) All obligations Each Lender, to the extent it so requires, shall have received satisfactory evidence that all tax returns required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including principal, accrued interest real property taxes and feespayroll taxes) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with prior to delinquency, except such taxes that are the proceeds subject of the initial Advances hereunder;
a Permitted Protest; (o) Agent Each Lender or its designees, to the extent such Lender requires, shall have completed its business, legal, field survey and collateral due diligence, including valuation of the Collateral (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Groupwhich completion hereby is acknowledged), the results of which shall in each case be satisfactory to Agent, Agent and each Lender (ii) a field survey performed which satisfactory results hereby are acknowledged by examiners on behalf of the Lender Group Agent and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
Lender); (p) Each Lender, to the extent it so requires, shall have received and approved the Closing Date Business Plan (which is hereby acknowledged by each Lender); (q) Agent shall have received the Business Plan, in form payment of all accrued and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the unpaid Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
Expenses; (r) Agent Each Lender, to the extent it so requires, shall have received satisfactory evidence that there has been no Material Adverse Change in the Operations Plan, in form financial condition of Borrower or the Collateral; and substance satisfactory to Agent;
(s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent Agent, each Lender, and its their respective counsel.
Appears in 1 contract
Samples: Loan and Security Agreement (CTC Communications Corp)
Conditions Precedent to the. Initial Advance and Issuance of the Initial Letter of Credit. The obligation of the Lender Group Foothill to make the initial Advance and to issue the initial Letters Letter of Credit is subject to the fulfillment, to the satisfaction of the Lender Group Foothill and its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before April 30March 31, 20021998;
(b) Agent shall have filed all financing statements required by Agent, duly executed by the applicable Borrowers, and Agent Foothill shall have received searches reflecting the filing of all such its financing statementsstatements and fixture filings;
(c) Agent Foothill shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Parent Pledge Agreement,Lockbox Agreements;
(ii) the ZB Trademark Security Agreement,Disbursement Letter;
(iii) the Xxxxxxx Trademark Security Agreement,Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower;
(iv) the Vendex Intercreditor Intellectual Property Security Agreement,;
(v) the Athanor Intercreditor Agreement,Guaranty;
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) Mortgages which shall be second to existing mortgages or deeds of trust on Borrower's distribution center and a first on the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.remaining Real Properties;
(d) Agent Foothill shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors, Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers Borrower is a party and authorizing specific officers or directors of Borrowers Borrower to execute the same;
(e) Agent Foothill shall have received copies of each Borrower's and Parent's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such BorrowerBorrower and Parent respectively;
(f) Agent Foothill shall have received a certificate of status with respect to each Borrower, Borrower and Parent dated within 10 days of the Closing Date, such certificate certificates to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, Borrower and 29 Parent which certificate shall indicate that such each of Borrower and Parent is in good standing in such jurisdiction;
(g) Agent Foothill shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent Foothill shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.96.10, the form and substance of which shall be satisfactory to Agent Foothill and its counsel;
(i) Foothill shall have received duly executed certificates of title with respect to that portion of the Collateral that is subject to certificates of title;
(j) Foothill shall have received such Collateral Access Agreements from lessors, warehousemen, bailees, mortgagees and other third persons as Foothill may require;
(k) Agent Foothill shall have received an opinion or opinions of Borrowers' Borrower's counsel in form and substance satisfactory to Agent Foothill in its sole discretion;
(l) Borrowers On the Closing Date, Borrower shall have Availability of not less than $5,000,000500,000 of Excess Availability and unrestricted cash on hand, net of Tax Reserves, after taking into account making the initial Advance and the issuance of any Letters of Credit on the Closing Datepayments described in Section 7.17(a);
(m) No order Foothill shall have been entered or requested by any Person (i) received reference checks for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy CaseBorrower's executive officers;
(n) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder Foothill shall have been paid in full with the proceeds completed its field examination of the initial Advances hereunderBorrower and an appraisal of Borrower's Inventory;
(o) Agent Foothill shall have completed its business, legal, and collateral due diligence, including (i) received a collateral audit and review certificate from the relevant officer of Borrowers' books and records and verification of Borrowers' representations and warranties Borrower to the Lender Groupeffect that, on the results basis of which shall be satisfactory to Agenta comprehensive review and assessment undertaken by Borrower of Borrower's computer applications and inquiry made of Borrower's material suppliers, (ii) vendors and customers, Borrower reasonably believes that the Year 2000 Problem will not result in a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to AgentMaterial Adverse Change;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations Plan, in form and substance satisfactory to Agent;
(s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent Foothill and its counsel.
Appears in 1 contract
Conditions Precedent to the. Initial Advance and Issuance of the Initial Letter of Credit. The obligation of the Lender Group to make the initial Advance and to issue the initial Letters Letter of Credit is subject to the fulfillment, to the satisfaction of the Lender Group Agent and its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before April 30February 15, 20022005;
(b) Agent shall have received and filed all financing statements required by Agent, duly executed by the applicable Borrowers, and Agent shall have received searches reflecting the filing of all such amendments to its financing statements;
(c) Agent shall have received each of the following documentsGuaranties, duly executed, and each such document shall be in full force and effect:
(i) the Parent Pledge Agreement,
(ii) the ZB Trademark Security Agreement,
(iii) the Xxxxxxx Trademark Security Agreement,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors, Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers Borrower is a party and authorizing specific officers or directors of Borrowers such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such each Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such each Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(kh) Agent shall have received an opinion or opinions of Borrowers' counsel in form and substance satisfactory to Agent in its sole discretion;
(l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
(n) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with the proceeds of the initial Advances hereunder;
(o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations Plan, in form and substance satisfactory to Agent;
(s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent and its counsel.
Appears in 1 contract
Samples: Loan and Security Agreement (Childrens Place Retail Stores Inc)
Conditions Precedent to the. Initial Advance and Issuance of the Initial Letter of Credit. Term Loan B. The obligation of the Lender Group Bank to make the initial Advance and to issue the initial Letters of Credit is subject to the fulfillment, to the satisfaction of the Lender Group Bank and its counsel, of each of the following conditions set forth in this Section 3.1 on or before the Closing Date:. In addition, the funding of Term Loan B is subject to each of the conditions precedent set forth in this Section 3.1 as well as delivery to Bank of evidence satisfactory to Bank that the transactions contemplated by the Purchase Agreement have been consummated.
(a) the Closing Date shall occur on or before April 30May 10, 2002;
(b) Agent shall have filed all financing statements required by Agent, duly executed by the applicable Borrowers, and Agent Bank shall have received searches reflecting the filing of all such its financing statementsstatements and fixture filings;
(c) Agent Bank shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Parent Pledge Intellectual Property Security Agreement,;
(ii) the ZB Trademark Security Agreement,Mortgages in recordable form;
(iii) the Xxxxxxx Trademark Security AgreementRevolver Note, Term Note A and Term Note B,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Disbursement Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.;
(d) Agent Bank shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors, Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers Borrower is a party and authorizing specific officers or directors of Borrowers Borrower to execute the same;
(e) Agent Bank shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent Bank shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent Bank shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent Bank shall have received evidence that each Borrower has ordered certificates of status with respect mortgagee title insurance policies (or marked commitments to such Borrower, such certificates to be issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Bank (each a "Mortgage Policy" and, collectively, the appropriate officers "Mortgage Policies") in amounts satisfactory to Bank assuring Bank that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of the jurisdiction of organization of such Borrower all defects and encumbrances except Permitted Liens, and the jurisdictions where such Borrower maintains its principal places of business, which certificates Mortgage Policies otherwise shall indicate that such Borrower is be in tax good standing in such jurisdictions;form and substance satisfactory to Bank.
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent Bank shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.96.8, the form and substance of which shall be satisfactory to Agent Bank and its counsel;
(kj) Agent Bank shall have received an opinion or opinions such Collateral Access Agreements from lessors, warehousemen, bailees, and other third persons as Bank may require;
(k) Bank shall have received a phase-I environmental report with respect to each parcel composing the Real Property Collateral; the environmental consultants retained for such reports, the scope of Borrowers' counsel in form the reports, and substance satisfactory the results thereof shall be acceptable to Agent in its sole discretion;Bank; and
(l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
(n) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with the proceeds of the initial Advances hereunder;
(o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations Plan, in form and substance satisfactory to Agent;
(s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent Bank and its counsel.
Appears in 1 contract
Samples: Loan and Security Agreement (California Amplifier Inc)
Conditions Precedent to the. Initial Advance and Issuance of the Initial Letter of CreditTerm Loan. The obligation of the Lender Group Foothill to make the initial Advance and to issue the initial Letters of Credit Term Loan is subject to the fulfillment, to the satisfaction of the Lender Group Foothill and its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before April 30July 21, 20021999;
(b) Agent shall have filed all financing statements required by Agent, duly executed by the applicable Borrowers, and Agent Foothill shall have received searches reflecting the filing of all such its financing statements;
(c) Agent Foothill shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Parent Pledge Agreement,Lockbox Agreements;
(ii) the ZB Trademark Security Agreement,Disbursement Letter;
(iii) the Xxxxxxx Trademark Security Agreement,Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower;
(iv) the Vendex Intercreditor Intellectual Property Security Agreement,; and
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card AgreementsMortgages.
(d) Agent Foothill shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors, Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers Borrower is a party and authorizing specific officers or directors of Borrowers Borrower to execute the same;
(e) Agent Foothill shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent Foothill shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent Foothill shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent Foothill shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.96.10, the form and substance of which shall be satisfactory to Agent Foothill and its counsel;
(i) Foothill's counsel shall have reviewed the Indenture, dated as of March 5, 1998, for Borrower's 13 1/4% Senior Discount Notes due 2005, Series A and B and Borrower's Service Agreements with Borrower's major customers;
(j) Foothill shall have received such Collateral Access Agreements from lessors, warehousemen, bailees, and other third persons as Foothill may require;
(k) Agent Foothill shall have received an opinion or opinions of Borrowers' Borrower's counsel in form and substance satisfactory to Agent Foothill in its reasonable discretion;
(l) Foothill shall have received (i) an appraisal of the Real Property Collateral satisfactory to Foothill, and (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Foothill (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Foothill assuring Foothill that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies shall otherwise be in form and substance reasonably satisfactory to Foothill;
(m) Foothill shall have received a phase-I environmental report and a real estate survey shall have been completed with respect to the Real Property Collateral and copies thereof delivered to Foothill; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Foothill in its sole discretion;
(ln) Borrowers Foothill shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall received satisfactory evidence that all tax returns required to be filed by Borrower have been entered timely filed and all taxes upon Borrower or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtorsits properties, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
(n) All obligations assets, income, and franchises (including principal, accrued interest real property taxes and feespayroll taxes) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with prior to delinquency, except such taxes that are the proceeds subject of the initial Advances hereundera Permitted Protest;
(o) Agent Foothill shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review received background checks for each of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender GroupBorrower's key officers, the results of which shall be are satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to AgentFoothill;
(p) Agent Borrower shall have received not less than $15,000,000 of Excess Availability after paying the Business Plan, in form closing fee to Foothill and substance acceptable to Agent;with Borrower's accounts payable being paid within their terms; and
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations Plan, in form and substance satisfactory to Agent;
(s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent Foothill and its counsel.
Appears in 1 contract
Conditions Precedent to the. Initial Advance and Issuance Making of the Initial Letter of CreditRevolving Credit Loan (HAPL). The obligation of the Lender Group Banks to make the initial Advance and to issue the initial Letters of Revolving Credit Loan (HAPL) contemplated by this Agreement is subject to the fulfillment, to condition precedent that the satisfaction of the Lender Group and its counsel, of each of the following conditions Agent shall have received from HAPL on or before the Closing Dateday of the making of the first Revolving Credit Loan (HAPL) the following, each dated such day, in form and substance satisfactory to the Agent and its counsel:
(a) A Revolving Credit Note duly executed by HAPL and payable to the Closing Date shall occur on or before April 30, 2002;order of each of the Banks.
(b) Agent shall have filed all financing statements required by Agent, duly executed by the applicable Borrowers, and Agent shall have received searches reflecting the filing of all such financing statements;
Certified (c) Agent shall have received each as of the following documents, duly executed, and each such document shall be in full force and effect:
(idate of this Agreement) the Parent Pledge Agreement,
(ii) the ZB Trademark Security Agreement,
(iii) the Xxxxxxx Trademark Security Agreement,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.
(d) Agent shall have received a certificate from the Secretary copies of each Borrower attesting to the resolutions of such Borrower's the Board of Directors, Directors of HAPL authorizing its execution, delivery, the Revolving Credit Loans (HAPL) and performance of authorizing and approving this Agreement and the other Loan Documents and the execution, delivery and performance thereof and certified copies of all documents evidencing other necessary corporate action and governmental or other approvals, if any, with respect to which such Borrowers is this Agreement and the other Loan Documents.
(c) Certified (as of the date of this Agreement) copies of the resolutions of the Board of Directors of each of the Guarantors authorizing and approving this Agreement, its Guaranty and any other Loan Document applicable to the Guarantors, and the execution, delivery and performance thereof and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, its Guaranty and the other Loan Documents.
(d) A certificate of the Secretary or an Assistant Secretary (attested to by another officer) of HAPL certifying; (i) the names and true signatures of the officer or officers of HAPL authorized to sign this Agreement, the Revolving Credit Notes (HAPL) and the other Loan Documents to be delivered hereunder on behalf of HAPL; and (ii) a party copy of HAPL's by-laws as complete and authorizing specific officers or directors correct on the date of Borrowers to execute the same;this Agreement.
(e) Agent shall have received copies A certificate of the Secretary or an Assistant Secretary (attested to by another officer) of each Borrowerof the Guarantors certifying (i) the names and true signatures of the officer or officers of the Guarantors authorized to sign this Agreement, their Guaranties and any other Loan Documents to be delivered hereunder on behalf of the Guarantors; (ii) a copy of each Guarantor's Governing Documents, by-laws as amended, modified, or supplemented to complete and correct on the Closing Date, date of this Agreement; and (iii) the stock ownership each Guarantor.
(f) Copies certified by the Secretary of such Borrower;
(f) Agent shall have received State of the State of New York in the case of HAPL, the Secretary of State of the State of Delaware in the case of Xxxxxx and Equipment, the Ministry of Consumer and Commercial Relations of Ontario, Canada in the case of Pulse, and the Secretary of State of the State of Texas in the case of Sedeco, of the certificate of incorporation and all amendments thereto of HAPL and the Guarantors and a certificate of status existence and good standing with respect to HAPL and the Guarantors from the Secretary of State of each Borrower, dated within 10 days of the Closing Date, such certificate state listed on Schedule 4.01(b) hereto and from any other jurisdiction in which HAPL and each Guarantor is qualified to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;do business.
(g) an opinion of Ruskin, Moscou, Xxxxx & Faltischek, P.C., counsel for HAPL and an opinion of counsel for each Guarantor (other than Pulse) as to certain matters referred to in Article IV hereof and as to such other matters as the Agent shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which or its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;counsel may reasonably request.
(h) Agent shall have received evidence that From each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of businessGuarantors, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;an executed Guaranty.
(i) Agent shall have received From HAPL, a Solvency Certificate from each Borrower, certified Security Agreement duly executed by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(k) Agent shall have received an opinion or opinions of Borrowers' counsel in form and substance satisfactory to Agent in its sole discretion;
(l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
(n) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement HAPL giving to the lenders thereunder shall have been paid Banks a first priority security interest in full with the proceeds of the initial Advances hereunder;
(o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for substantially all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, assets of HAPL including, but not limited to, all fees personal property, equipment, fixtures, inventory, accounts, chattel paper (including all Eligible Lease assets and all other leases of commercial and industrial embroidery and related equipment) and general intangibles all whether now owned or hereafter acquired (the "Collateral") together with: (1) acknowledgement copies of the Financing Statements (UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions necessary or, in the opinion of the Agent, desirable to perfect the security interest created by the Security Agreement; and (2) certified copies of Request for Information (Form UCC-11) identifying all of the financing statements on file with respect to HAPL in all jurisdictions referred to under (1), including the Financing Statements filed by the Agent on behalf of the Banks against HAPL indicating that no party claims an interest in any of the Collateral, other than Liens permitted by Section 5.02(a).
(j) From HAPL, copies of all the Borrower's credit agreements, loan agreements, indentures, mortgages and other documents relating to the extension of credit.
(k) The following statements shall be true and the Agent shall have received certificates signed by a duly authorized officer of each of HAPL and the Guarantors dated the date hereof, stating that to the best of the officer's knowledge after due inquiry:
(i) The representations and payable warranties contained in Article IV of this Agreement, the Guaranty and in the Security Agreement are correct on and as of such date; and
(ii) No Default or Event of Default has occurred and is continuing, or would result from the Closing Date making of a Revolving Credit Loan (HAPL).
(l) The Bank shall have received a Borrowing Base Certificate in accordance with the provisions of Section 5.01(m).
(m) From HAPL, (x) the fees and expenses for audits, collateral appraisals, legal assistanceto be paid pursuant to this Agreement, and lien searches (y) those fees, charges and filings;expenses as HAPL, the Banks and the Agent may mutually agree.
(n) From HAPL, a property damage insurance policy in the amount of the replacement value of that portion of the Collateral consisting of industrial and commercial embroidery and related equipment held as inventory and not leased to a lessee for such equipment, naming the Agent and the Banks as loss payee with an insurance company acceptable to the Agent. The policy shall provide for thirty (30) days notice to the Agent of cancellation or change.
(o) From HAPL, a copy of its current form of lease for industrial and commercial embroidery equipment, together with all supporting documentation thereto.
(p) From HAPL, copies of all master purchase agreements or similar agreements entered into by HAPL in connection with the sale of its lease paper, including, but not limited to such agreements entered into by HAPL with each Funding Source, and all criteria for permanent Non-Recourse purchase by each Funding Source.
(q) The Agent shall have conducted a Collateral Audit of the (i) the Eligible Lease Assets and (ii) the books and records of the Borrower, and the Agent shall have conducted such other due diligence as the Agent, in its reasonable discretion, considers necessary. The results of such Collateral Audit shall be satisfactory to the Agent in its reasonable discretion. Such Collateral Audit may be performed by the Agent's internal staff or by the Agent's designated representatives. The Collateral Audit shall be at the expense of HAPL.
(r) All legal matters incident to the initial Revolving Credit Loan (HAPL) shall be satisfactory to Cullen and Xxxxxx, counsel to the Agent.
(s) The Agent shall have entered into an Intercreditor Agreement with each Funding Source.
(t) The Agent shall have received the Operations Plansuch other approvals, in form and substance satisfactory to Agent;
(s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executedopinions, or recorded and shall be in form and substance satisfactory to documents as the Agent and its counselmay reasonably request.
Appears in 1 contract
Conditions Precedent to the. Initial Advance and Issuance of the Initial Letter of CreditLoan to each Borrowing Subsidiary. The obligation of the Lender Group each Bank to make the its initial Advance and Loan to issue the initial Letters of Credit any Borrowing Subsidiary is subject to the fulfillment, to further conditions precedent that the satisfaction of the Lender Group and its counsel, of each of the following conditions Administrative Agent shall have received on or before the Closing DateBorrowing Date for such Loan the following, each dated such date, and in sufficient copies for each Bank and the Administrative Agent:
(a) A Borrowing Subsidiary Counterpart executed by such Borrowing Subsidiary and acknowledged by the Closing Date shall occur on or before April 30, 2002;Company.
(bi) Agent shall have filed A copy of the articles or certificate of incorporation (or other similar evidence of organization) of such Borrowing Subsidiary, together with all financing statements required by Agentamendments, duly executed and a current certificate of good standing, both certified by the appropriate governmental officer, in its jurisdiction of organization; (ii) a certificate of the Secretary or Assistant Secretary of such Borrowing Subsidiary certifying, inter alia, (A) true and correct copies of the bylaws (or other similar document) of such Borrowing Subsidiary as in effect on the date of such certificate and at all times since a date prior to the date of the resolutions or other action described in clause (B) below, (B) true and complete copies of resolutions duly adopted by the Board of Directors of such Borrowing Subsidiary (or of the taking of such other action as may be necessary and appropriate under applicable Borrowerslaw), authorizing such Borrowing Subsidiary to execute, deliver and perform its obligations under its Borrowing Subsidiary Counterpart and this Agreement, and Agent shall have received searches reflecting to borrow and effect other transactions hereunder, and that such resolutions or other action has not been modified, rescinded or amended and is in full force and effect and (C) the filing incumbency and specimen signatures of all the Persons executing any documents on behalf of such financing statements;Borrowing Subsidiary; and (iii) a certificate of another officer of such Borrowing Subsidiary as to the incumbency and specimen signature of the Secretary or Assistant Secretary of such Borrowing Subsidiary.
(c) Agent shall have received each A certificate of the following documents, duly executed, and each a principal officer of such document shall be in full force and effect:
Borrowing Subsidiary certifying (i) the Parent Pledge Agreement,
truth of the representations and warranties set forth in this Agreement with respect to such Borrowing Subsidiary and (ii) the ZB Trademark Security Agreement,
(iii) absence of the Xxxxxxx Trademark Security Agreement,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) occurrence and continuance of any Participation Agreement,
(viii) the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card AgreementsDefault or Event of Default with respect to such Borrowing Subsidiary.
(d) Agent shall have received a certificate from the Secretary One or more written opinions of each Borrower attesting counsel to the resolutions of such Borrower's Board of Directors, authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers is a party and authorizing specific officers or directors of Borrowers to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each BorrowerBorrowing Subsidiaries, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(k) Agent shall have received an opinion or opinions of Borrowers' counsel in form and substance satisfactory to the Administrative Agent in its sole discretion;and the Banks.
(le) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
(n) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with the proceeds of the initial Advances hereunder;
(o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations PlanA letter from Corporation Service Company, in form and substance satisfactory to the Administrative Agent;, evidencing the obligation of Corporation Service Company to accept service of process in the State of New York on behalf of such Borrowing Subsidiary.
(sf) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All Such other documents and legal matters in connection with as either the transactions contemplated by this Agreement shall Administrative Agent or any Bank through the Administrative Agent may have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent and its counselreasonably requested.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (Service Corporation International)
Conditions Precedent to the. Initial Advance and Issuance of Loan on the Initial Letter of CreditClosing Date. The obligation obligations of the each Lender Group to make the initial Advance and Loan to issue the Borrower on the initial Letters of Credit is Closing Date shall be subject to the fulfillment, to the prior or concurrent satisfaction of the or waiver by each Lender Group and its counsel, of each of the conditions precedent set forth in this Section 5.1:
(i) delivery of an executed copy of this Agreement;
(ii) delivery of an executed copy of a Note payable to the Lender as of the date hereof (together with, if requested by such Xxxxxx, the original thereof promptly following conditions on or before the initial Closing Date:);
(iii) delivery of a certificate of Xxxxxxxx, executed by an authorized signer, attaching (a) the Closing Date shall occur certificate of formation of Borrower, certified as of a recent date by the state in which the Borrower is organized; (b) the limited liability company agreement of the Borrower and any other governing documents; (c) resolutions of Borrower’s governing body evidencing approval of the transactions contemplated by this Agreement and the execution, delivery and performance thereof, and authorizing certain officers to execute and deliver the same and certifying that such resolutions were duly and validly adopted; (d) an incumbency certificate, certifying as to the names, titles and true signatures of its officers authorized to sign for and on behalf of Borrower; and (e) a good standing certificate issued by the state of Borrower’s organization, in each case for clauses (a) through (d) certifying that all attachments have not be amended, revoked or before April 30, 2002rescinded;
(biv) evidence of the establishment of the Collection Account of the Borrower into which Receivables related the Borrower’s Project or Projects (as of the initial Closing Date) shall be delivered, and delivery of a duly executed Control Agreement for such Collection Account;
(v) delivery of true, complete, and correct copies of each of the Borrower Management Agreement and the Borrower Servicing Agreement;
(vi) delivery of a Limited Performance Guaranty in the form of Exhibit F (the “Limited Performance Guaranty”), duly executed by SEC, the Borrower and the Administrative Agent, in favor of the Borrower and the Administrative Agent shall have filed all financing statements required by Agentfor the benefit of the Secured Parties, guaranteeing certain obligations of its Affiliates performing servicing and/or management of any Projects subject to a Loan;
(vii) delivery of a Pledge Agreement in the form of Exhibit G (the “Pledge Agreement”), duly executed by the applicable BorrowersPledgor and the Borrower, pledging the ownership interests in the Borrower and each Project Company, respectively, to Administrative Agent shall have received searches reflecting for the filing of all such financing statements;
(c) Agent shall have received each benefit of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Parent Pledge Agreement,
(ii) the ZB Trademark Security Agreement,
(iii) the Xxxxxxx Trademark Security Agreement,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,Secured Parties;
(viii) delivery of a General Security Agreement in the Fee Letter,form of Exhibit H, duly executed by the Borrower pledging the collateral thereunder to the Administrative Agent for the benefit of the Secured Parties (the “General Security Agreement”);
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.
(d) Agent shall have received a certificate from the Secretary prior or concurrent filing of each Borrower attesting to the resolutions of such Borrower's Board of Directors, authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers is a party and authorizing specific officers or directors of Borrowers to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(k) Agent shall have received an opinion or opinions of Borrowers' counsel in form and substance satisfactory to Agent in its sole discretion;
(l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
(n) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with the proceeds of the initial Advances hereunder;
(o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations PlanUniform Commercial Code Financing Statements, in form and substance satisfactory to Administrative Agent, and as Administrative Agent may deem necessary, in its sole discretion, to perfect, a valid and enforceable security interest and lien of first priority (subject to Permitted Liens) against all Collateral;
(sx) Agent delivery of UCC and litigation searches for the Pledgor, the Developer, the Manager, the Servicer and the Loan Parties in Texas and Delaware, dated a date reasonably near to the date hereof;
(xi) delivery of evidence of insurance;
(xii) delivery of (a) unaudited financial statements of SEI for the quarter ended September 30, 2023 (provided that this condition precedent shall have had be the opportunity to reviewfiling of the appropriate report on Form 10-Q with the Securities and Exchange Commission), and shall be satisfied with, in Agent's Discretion, (b) the capitalization, ownership and management of Parent and each Borrower’s pro forma balance sheet as of the other Borrowers, including without limitation, initial Closing Date hereunder;
(xiii) delivery of a funds flow memorandum (or similar document) providing payment and wire instructions to the terms Administrative Agent for the payment of amounts due and conditions of payable on the employment of the Key Managersinitial Closing Date; and
(txiv) All other documents payment of all fees and legal matters expenses of Administrative Agent and any Lender due hereunder or in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent and its counselherewith.
Appears in 1 contract
Samples: Master Revolving Loan Agreement (Sunnova Energy International Inc.)
Conditions Precedent to the. Initial Advance Closing Date and Issuance of the Initial Letter Extension ------------------------------------------------------------------ of Credit. The obligation of the Lender Group (or any member thereof) to make --------- the initial Advance and (or otherwise to issue the make an initial Letters extension of Credit credit provided for hereunder), is subject to the fulfillment, to the satisfaction of the Lender Group and its counselAgent, of each of the following conditions on or before the Closing Dateprecedent set forth below:
(a) the Closing Date shall occur on or before April 30March 31, 2002;
(b) Agent shall have filed all financing statements required by Agent, received the UCC Filing Authorization Letter duly executed by the applicable Borrowers, each Borrower and Guarantor and Agent shall have received searches reflecting satisfactory evidence of the filing of all financing statements on Form UCC-1 in such financing statementsoffice or offices as may be necessary or, in the opinion of Agent, desirable to perfect the security interests purported to be created by each applicable Loan Document;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) the Parent Pledge Agreement,Control Agreement with respect to the Initial Advance Account;
(ii) the ZB Trademark Security AgreementDisbursement Letter,
(iii) the Xxxxxxx Trademark Security AgreementDue Diligence Letter,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(v) the Guaranty,
(vi) the Officers' Certificate,
(vii) the Pledge Agreement, together with (i) all certificates representing the shares of Stock pledged thereunder (other than Stock referenced in Section 3.2(d)), as well as Stock powers with -------------- respect thereto endorsed in blank, and (ii) all promissory notes pledged thereunder, as well as allonges thereto or other appropriate transfer certificates endorsed in blank,
(viii) the Trademark Security Agreement,
(ix) the Cash Management Agreements, andIntercompany Subordination Agreement,
(x) the Credit Card Agreements.Contribution Agreement, and
(xi) the Guarantor Security Agreement;
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors, Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers Borrower is a party and authorizing specific officers or directors of Borrowers such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower and, as of a recent date not more than 30 days prior to the Closing Date, by an appropriate official of the state of organization of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated within 15 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor and, as of a recent date not more than 30 days prior to the Closing Date, by an appropriate official of the state of organization of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that each Borrower has ordered such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to such Borrowereach Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officers officer of the jurisdictions (other than the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains Guarantor) in which its principal places of businessfailure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower Guarantor is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(jl) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.96.7, the form ----------- and substance of which shall be reasonably satisfactory to Agent and its counselAgent;
(km) Agent shall have received an opinion or opinions of Borrowers' counsel in form and substance satisfactory to Agent in its sole discretion;
(l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy CaseAgent;
(n) All obligations Agent shall have received satisfactory evidence (including principala certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, accrued interest assets, income, and feesfranchises (including Real Property taxes and payroll taxes) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with prior to delinquency, except such taxes that are the proceeds subject of the initial Advances hereundera Permitted Protest;
(o) Agent shall have completed its business, legal, received a certificate from the chief financial officer of each Borrower certifying as to the truth and collateral due diligence, including (i) a collateral audit and review accuracy of Borrowers' books and records and verification of Borrowers' the representations and warranties of Borrowers contained in Article 5 and as to the Lender Group, the results absence of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf any Defaults or Events of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to AgentDefault;
(p) Agent Borrowers shall have received the Business Plan, in form Required Availability after giving effect to the initial extensions of credit hereunder and substance acceptable the payment of all fees and expenses required to Agentbe paid by Borrowers on the Closing Date under this Agreement and the other Loan Documents and Borrowers' trade payables shall be at a level and aged consistent with Borrowers' historical practices;
(q) Agent shall have received Borrowers' Closing Date Business Plan;
(r) Borrowers shall have reimbursed the pay all Lender Group for all of the reasonable costs Expenses incurred by the Lender Group in connection with the transactions contemplated evidenced by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations Plan, in form and substance satisfactory to Agent;
(s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management received copies of Parent and each of the other BorrowersMaterial Contracts, including without limitationtogether with a certificate of the Secretary of the applicable Borrower certifying each such document as being a true, correct, and complete copy thereof;
(t) The outstanding standby letter of credit no. 0000000 issued by Bank of America, N.A. with an undrawn amount not to exceed $1,500,000 shall be cash collateralized in accordance with the terms and conditions of the employment Pay-Off Letter;
(u) Borrowers shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrowers of this Agreement or any other Loan Document or with the consummation of the Key Managerstransactions contemplated hereby and thereby; and
(tv) All all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent and its counselAgent.
Appears in 1 contract
Conditions Precedent to the. Initial Advance Purchase and Issuance Sale of -------------------------------------------------------- Receivables. The purchase and sale of the Initial Letter first Pool of Credit. The obligation of the Lender Group to make the initial Advance and to issue the initial Letters of Credit Eligible Receivables ----------- hereunder is subject to the fulfillmentcondition precedent that Purchaser shall have received, to or waived the satisfaction of the Lender Group and its counselreceipt of, of each of the following conditions on or before the Closing DateDate the following, each (unless otherwise indicated) in form and substance reasonably acceptable to Purchaser:
(a) Certified copies of Seller's Certificate of Incorporation, together with a good standing certificate from the Secretary of State of the State of Delaware and each other state in which Seller is qualified as a foreign corporation to do business, each dated a recent date prior to the Closing Date shall occur on or before April 30, 2002Date;
(b) Agent shall have filed all financing statements required Copies of Seller's Bylaws certified as of the Closing Date by Agent, duly executed by the applicable Borrowers, its corporate secretary or an assistant secretary as being in full force and Agent shall have received searches reflecting the filing of all such financing statementseffect without modification or amendment;
(c) Agent shall have received each Resolutions of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Parent Pledge Agreement,
(ii) the ZB Trademark Security Agreement,
(iii) the Xxxxxxx Trademark Security Agreement,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such BorrowerSeller's Board of Directors, Directors approving and authorizing its the execution, delivery, delivery and performance of this Agreement and the other Loan Transaction Documents to which such Borrowers it is a party, certified as of the Closing Date by its corporate secretary or an assistant secretary as being in full force and effect without modification or amendment;
(d) Signature and incumbency certificates of Seller's officers executing this Agreement and the other Transaction Documents to which it is a party and authorizing specific officers or directors (on which certificate Purchaser may conclusively rely until such time as it shall receive from Seller a revised certificate meeting the requirements of Borrowers to execute the samethis subsection (d));
(e) Agent shall have received copies Executed originals of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrowerthis Agreement;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdictionSuch other documents as Purchaser may reasonably request;
(g) Agent shall have received certificates of status with respect Evidence reasonably satisfactory to each Borrower, each dated within 15 days Purchaser of the Closing Datefiling of Financing Statements (Form UCC-1) naming Seller as debtor and Purchaser as secured party and covering the Purchased Receivables and Related Security, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(k) Agent shall have received an opinion or opinions of Borrowers' counsel in form and substance satisfactory to Agent the Purchaser, or other similar instruments or documents as may be necessary or appropriate under the UCC of all appropriate jurisdictions or any comparable law to transfer Seller's interests in all Purchased Receivables and Related Security to the Purchaser;
(h) Certified copies of Requests for Information or Copies (Form UCC- 11) (or a similar search report certified by a party acceptable to Purchaser), dated a date reasonably close to the Closing Date, listing all effective financing statements which name Seller (under its sole discretionpresent name and any previous names) as debtor and which are filed in the jurisdictions in which filings were made pursuant to subsection (g) above, together with copies of such financing statements (none of which shall cover any Eligible Receivables or Contracts other than those subject to the release referred to below);
(i) A release, in form and substance satisfactory to the Purchaser, of the security interests of the lenders under the Seller's bank credit facility in Purchased Receivables and Related Security;
(j) Opinions of (1) Ropes & Xxxx, counsel to Seller, in form and substance satisfactory to Purchaser and (2) White & Case, special New York counsel to Seller, in form and substance satisfactory to Purchaser;
(k) Evidence of payment to Purchaser of all transaction fees payable by Seller on or prior to the Closing Date as set forth in the Fee Letter;
(l) Borrowers shall have Availability Payment of not less than $5,000,000, after taking into account the initial Advance all reasonable legal fees and the issuance of any Letters of Credit other fees and out-of- pocket expenses as to which Purchaser has presented bills or invoices on or prior to the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment Schedule of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy CaseApproved Obligors;
(n) All obligations (including principalAn executed participation agreement, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with the proceeds of the initial Advances hereunder;
(o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred entered into by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations PlanSubordinated Participants, in form and substance satisfactory to Agentthe Purchaser, pursuant to which such Subordinated Participants agree to purchase a subordinated participation in the Pools in an amount equal to $9,000,000 on a Net Investment basis (the "Participation Agreement");
(so) Agent shall have had An executed Receivables Management Services agreement, entered into by the opportunity to reviewAdministrator and Purchaser, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent the Purchaser, pursuant to which Administrator shall have agreed to perform certain administrative functions for the Purchaser hereunder (the "Administration Agreement"); and
(p) Evidence of the establishment of the Administrative Fee Account and its counselthe availability of funds deposited in such account to be applied towards the Administrative Fee pursuant to Section 5.01(l).
Appears in 1 contract
Samples: Receivables Purchase Agreement (Aurora Foods Inc /De/)
Conditions Precedent to the. Initial Advance Effectiveness of this ------------------------------------------------- Amendment and Issuance Waiver. This Amendment and Waiver shall have become effective as -------------------- of the Initial Letter of Credit. The obligation of the Lender Group to make the initial Advance and to issue the initial Letters of Credit is subject to the fulfillment, to the satisfaction of the Lender Group and its counsel, of date hereof so long as each of the following conditions on or before the Closing Dateprecedent shall have been satisfied:
(a) The representations and warranties set forth in each of the Closing Date Loan Documents shall occur be correct in all material respects on and as of the date hereof, after giving effect to this Amendment and Waiver, as though made on and as of such date (except (i) for any such representation and warranty that, by its terms, refers to a specific date other than the date hereof, in which case as of such specific date, (ii) that the Consolidated financial statements of the Borrower and its Subsidiaries referred to in Sections 4.01(f) and 4.01(g) of the Credit Agreement shall be deemed to refer to the Consolidated financial statements of the Borrower and its Subsidiaries comprising part of the Required Financial Information most recently delivered to the Administrative Agent and the Lender Parties pursuant to Sections 5.03(b) and 5.03(c), respectively, on or before April 30, 2002;prior to the date hereof and (iii) that the forecasted Consolidated financial statements of the Borrower and its Subsidiaries referred to in Section 4.01(h) of the Credit Agreement shall be deemed to refer to the forecasted Consolidated financial statements of the Borrower and its Subsidiaries most recently delivered to the Administrative Agent and the Lender Parties prior to the date hereof).
(b) Agent No event shall have filed all financing statements required by Agentoccurred and be continuing, duly executed by the applicable Borrowers, and Agent or shall have received searches reflecting the filing of all such financing statements;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Parent Pledge Agreement,
(ii) the ZB Trademark Security Agreement,
(iii) the Xxxxxxx Trademark Security Agreement,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.
(d) Agent shall have received a certificate result from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors, authorizing its execution, delivery, and performance effectiveness of this Agreement Amendment and Waiver, that constitutes a Default other than the other Loan Documents to which such Borrowers Events of Default expressly waived under Section 2 hereof. The effectiveness of this Amendment and Waiver is a party and authorizing specific officers or directors further conditioned upon the accuracy of Borrowers to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(k) Agent shall have received an opinion or opinions of Borrowers' counsel in form and substance satisfactory to Agent in its sole discretion;
(l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
(n) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with the proceeds of the initial Advances hereunder;
(o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by factual matters described herein and in the presentation of the Borrower to the Agents and the Lender Group in connection with Parties on the transactions contemplated by conference call held therewith on the date hereof regarding the terms of this Agreement, including, but not limited to, all fees due Amendment and payable as Waiver. This Amendment and Waiver is subject to the provisions of Section 8.01 of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations Plan, in form and substance satisfactory to Agent;
(s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent and its counselCredit Agreement.
Appears in 1 contract
Samples: Amendment and Waiver to the Loan Documents (Medpartners Inc)
Conditions Precedent to the. Initial Advance and Issuance Effectiveness of this Agreement Upon the Initial Letter of Credit. The obligation of satisfaction (or waiver by the Lender Group to make the initial Advance and to issue the initial Letters of Credit is subject to the fulfillment, to the satisfaction of the Lender Group and in its counsel, sole discretion) of each of the following conditions on or before the Closing Dateprecedent, this Agreement shall become effective:
(a) The Lender or its counsel shall have received the Closing Date following in form and substance as shall occur on be satisfactory to the Lender, acting reasonably:
(i) this Agreement, duly executed by the Borrower;
(ii) each other Security Document, each duly executed by the Borrower, together with any financing statements, filings or before April 30other Instruments for filing or registration, 2002notarizations thereof, notices with respect thereto or other Instruments, including applicable estoppel letters, determined by the Lender, acting reasonably, to be necessary or desirable to establish, maintain, continue and perfect the Liens established pursuant to the Security Documents;
(iii) to the extent not specifically referenced, each other Loan Document, duly executed by the Borrower; and
(iv) a certificate for the Borrower from its jurisdiction of incorporation or organization confirming the due organization and good standing of the Borrower in such jurisdiction;
(b) Agent shall have filed all financing statements required by Agent, duly executed representations and warranties made by the applicable Borrowers, Borrower and Agent shall have received searches reflecting the filing of all such financing statements;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be Guarantors in full force and effect:
(i) the Parent Pledge Agreement,
(ii) the ZB Trademark Security Agreement,
(iii) the Xxxxxxx Trademark Security Agreement,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors, authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers is a party Document shall be true and authorizing specific officers correct;
(c) all approvals, consents and authorizations of Governmental Authorities or directors of Borrowers to execute other Persons required in connection with this Agreement and the sameother Loan Documents, if any, shall have been obtained and remain in effect;
(d) there shall be no pending or threatened (in writing) action or proceeding before any Governmental Authority against or affecting the Borrower;
(e) Agent the Lender shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(k) Agent shall have received an opinion or opinions of Borrowers' counsel in form and substance satisfactory to Agent in its sole discretion;
(l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
(n) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder shall have been paid in full with the proceeds of the initial Advances hereunder;
(o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations Planreceived, in form and substance satisfactory to Agentthe Lender, acting reasonably, search results from all relevant jurisdictions wherein the Borrower conducts business or owns property, pertaining to all Lien filings, registrations and records appearing in such jurisdiction, together with copies of any documents, filings and Instruments on file in such jurisdictions;
(sf) Agent shall have had the opportunity to reviewLender, and acting reasonably, shall be satisfied with, in Agent's Discretion, with the capitalization, ownership and management of Parent and each form of the Loan Documents;
(g) the Borrower shall have made all public disclosures (including all information material to the Borrower) and submitted all applications, reports and information, and taken all other Borrowersactions necessary, including without limitationto comply in all material respects with applicable Securities Laws and Cannabis Laws, and the terms Lender shall have confirmed such compliance to its satisfaction, acting reasonably;
(h) the Borrower shall have performed and complied with all agreements and conditions herein and in the other Loan Documents required to be performed and complied with;
(i) no Default or Event of the employment of the Key ManagersDefault shall have occurred and be continuing beyond any applicable cure period; and
(tj) All other documents and legal matters in connection with there shall not exist any litigation, investigation, bankruptcy or insolvency, injunction, order or claim affecting or relating to the transactions contemplated by Borrower, which has had, or could reasonably be expected to have, a Material Adverse Effect, or which could reasonably be expected to affect the legality, validity or enforceability of this Agreement shall have or any other Loan Document, that has not been deliveredsettled, executeddismissed, vacated, discharged or recorded and shall be in form and substance satisfactory to Agent and its counselterminated.
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Conditions Precedent to the. Initial Advance Drawdown and Issuance of the Initial Letter of CreditSubsequent Drawdowns -----------------------------------------------------------
3.1. The obligation of Lender shall not be obliged to make any loans to the Borrower unless the Lender Group to make the initial Advance and to issue the initial Letters of Credit is subject to the fulfillment, to the satisfaction of the Lender Group and its counsel, of each of the following conditions receives on or before the Closing Initial Drawdown Date:
(a) copies of resolutions of the Closing Date shall occur on or before April 30Borrower's Management and Supervisory Boards approving the execution of this Agreement, 2002the Secured Revolving Note and the Stock Pledge Agreement and the performance of the obligations contemplated hereby and thereby;
(b) Agent shall have filed all financing statements required by Agent, a counterpart of this Agreement duly executed and delivered by the applicable Borrowers, and Agent shall have received searches reflecting the filing of all such financing statementsBorrower;
(c) Agent shall have received each of the following documents, Secured Revolving Note duly executed, executed and each such document shall be in full force and effect:
(i) delivered by the Parent Pledge Agreement,
(ii) the ZB Trademark Security Agreement,
(iii) the Xxxxxxx Trademark Security Agreement,
(iv) the Vendex Intercreditor Agreement,
(v) the Athanor Intercreditor Agreement,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(ix) the Cash Management Agreements, and
(x) the Credit Card Agreements.Borrower;
(d) Agent shall have received a certificate from counterpart of the Secretary of each Borrower attesting to Stock Pledge Agreement duly executed and delivered by Borrower, together with certificates representing the resolutions of such Borrower's Board of Directors, authorizing its execution, delivery, Pledged Securities and performance of this Agreement and security transfer powers duly executed in blank for the other Loan Documents to which such Borrowers is a party and authorizing specific officers or directors of Borrowers to execute the samePledged Securities;
(e) Agent shall have received copies such other documentation as is necessary for the Lender to obtain a perfected security interest in all of each Borrower's Governing Documentsright, as amendedtitle and interest in the Pledged Securities, modified, or supplemented to the Closing Date, certified by the Secretary which security interest shall be free of such Borroweradverse claim;
(f) Agent Borrower shall have received a certificate of status with respect entered into, and duly executed and delivered the Offer Amendment and the Management Services Agreement.
3.2. The Lender shall not be obligated to each Borrower, dated within 10 days of the Closing Date, such certificate make any loans to Borrower if:
(a) there shall be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is and in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified effect any injunction or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction of organization of such Borrower and the jurisdictions where such Borrower maintains its principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(k) Agent shall have received an opinion similar legal order prohibiting or opinions of Borrowers' counsel in form and substance satisfactory to Agent in its sole discretion;
(l) Borrowers shall have Availability of not less than $5,000,000, after taking into account the initial Advance and the issuance of any Letters of Credit on the Closing Date;
(m) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner restraining consummation of any of the Debtors, transactions contemplated by the Offer Amendment or (ii) there is pending or threatened any legal action or governmental investigation or inquiry which might reasonably be expected to convert the Bankruptcy Case to Chapter 7 result in any such injunction or to dismiss the Bankruptcy Case;order; or
(nb) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder Offer shall have been paid in full with the proceeds of the initial Advances hereunder;
(o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to terminated without the Lender Group, accepting all the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group Shares tendered and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(p) Agent shall have received the Business Plan, in form and substance acceptable to Agent;
(q) Borrowers shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(r) Agent shall have received the Operations Plan, in form and substance satisfactory to Agent;
(s) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent and each of the other Borrowers, including without limitation, the terms and conditions of the employment of the Key Managers; and
(t) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent and its counselwithdrawn.
Appears in 1 contract
Conditions Precedent to the. Initial Advance and Issuance of the Initial Letter of Credit. The obligation of the Lender Group to make the initial Advance and to issue the initial Letters Letter of Credit is subject to the fulfillment, to the satisfaction of the Lender Group and its counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before April 30September 5, 20022001;
(b) Agent shall have filed all financing statements required by Agent, duly executed by the applicable Borrowers, and Agent shall have received searches reflecting the filing satisfactory results of all such financing statementsbackground checks on Borrower's key management personnel;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Parent Pledge Concentration Account Agreement,
(ii) the ZB Trademark Security AgreementDisbursement Letter,
(iii) the Xxxxxxx Trademark Security AgreementPay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower,
(iv) the Vendex Intercreditor Intellectual Property Security Agreement,
(v) the Athanor Intercreditor AgreementCredit Card Agreements,
(vi) the PNC Intercreditor Agreement,
(vii) any Participation Agreement,
(viii) the Fee Letter,
(vii) the Participation and Intercreditor Agreement, signed by WFRF and the Special Subline Participant and acknowledged and agreed to by the Borrower,
(viii) the Parent Guaranty;
(ix) the Cash Management Agreements, Parent Pledge; and
(x) a Mortgage on the Credit Card AgreementsBorrower's owned real estate in Phillipsburg, New Jersey.
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors, authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrowers Borrower is a party and authorizing specific officers or directors of Borrowers Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received evidence that each the Borrower has ordered certificates of status with respect to such Borrower, such certificates to be issued by the appropriate officers of the jurisdiction jurisdictions of organization of such the Borrower and the jurisdictions where such Borrower maintains its maintain their principal places of business, which certificates shall indicate that such Borrower is in tax good standing in such jurisdictions;
(i) Agent shall have received a Solvency Certificate from each Borrower, certified by the chief financial officer of such Borrower;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(kj) Agent shall have received an opinion or opinions of Borrowers' Borrower's counsel in form and substance satisfactory to Agent in its sole discretion;
(k) Agent shall have received proof of the mailing, to each depository institution with which any DDA is maintained, of notification (in form satisfactory to Agent) of the Lender Group's interest in such DDA;
(l) Borrowers Borrower shall have Availability of not less than $5,000,00015,000,000, after taking into account the initial Advance (in an amount sufficient to pay in full all obligations owing to Existing Lender and all other amounts due under the Purchase Agreement and the Final Bankruptcy Court Order) and the issuance of any Letters of Credit on the Closing Date;
(m) All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent and its counsel;
(n) No order shall have been entered or requested by any Person (i) for appointment of a trustee or examiner of any of the Debtors, or (ii) to convert the Bankruptcy Case to Chapter 7 or to dismiss the Bankruptcy Case;
(no) All obligations (including principal, accrued interest and fees) owing under the TRS Loan Agreement to WFRF and under the ZB Loan Agreement to the lenders thereunder Existing Lender shall have been paid in full with the proceeds of the initial Advances hereunderand the commitments of the Existing Lender under the DIP Facility shall have been terminated;
(op) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' Borrower's books and records and verification of Borrowers' Borrower's representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) a field survey performed by examiners on behalf of the Lender Group and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent;
(pq) Agent shall have received the Business Plan, in form and substance acceptable to the Agent;
(qr) Borrowers Borrower shall have reimbursed the Lender Group for all of the reasonable costs incurred by the Lender Group in connection with the transactions contemplated by this Agreement, including, but not limited to, all fees due and payable as of the Closing Date and expenses for audits, collateral appraisals, legal assistance, and lien searches and filings;
(rs) Agent shall have received Collateral Access Agreement(s) with respect to the Operations Planfollowing locations: 2520 Renaissance Boulevard, in form and substance satisfactory to AgentXxxx xx Xxxxxxx, Xxxxxxxxxxxx, 000 Xxxxxxxxx Xxxxxxxxx, Xwexxxxxxx, Xxx Xxxxxx xxx xxx Xxxxxxxx'x xxxxx xxecutive office.
(t) Agent shall have syndicated the Special Subline;
(su) Parent shall have made an equity contribution to Borrower's stockholder's equity in an amount no less than $23,200,000, of which no less than $20,800,000 shall be in cash;
(v) Agent shall have received and reviewed the Debtors' financial statements for the six months ended July 31, 2001 and deemed the financial performance reflected thereby to be acceptable in Agent's Discretion;
(w) The Final Bankruptcy Court Order shall have been Entered and shall be a Final Order;
(x) Agent shall have had the opportunity to review, and shall be satisfied with, in Agent's Discretion, the capitalization, ownership and management of Parent Borrower and each of the other BorrowersParent, including without limitation, the terms and conditions of the employment of the Key Managers; and
(ty) All other documents WFRF and legal matters in connection with the transactions contemplated by this Agreement Parent shall have been delivered, executed, or recorded and shall be in form and substance satisfactory entered into a mutually acceptable amendment to Agent and its counselthe Parent Loan Facility.
Appears in 1 contract
