CONDITIONS TO CLOSING AND ADVANCES. The obligations of Lender to consummate the transactions contemplated herein and to make any Advance under the Revolving Facility are subject to the satisfaction (or waiver), in the sole judgment of Lender, of the following: (a) Borrower shall have delivered to Lender: (i) the Loan Documents to which it is a party, each duly executed by an authorized officer of Borrower and any other parties thereto; (ii) A Closing Certificate certifying to the organizational documents of Borrower, the good standing or existence of Borrower in its jurisdiction of organization, the adoption of resolutions approving the Loans and the incumbency of its authorized officers; (iii) a Borrowing Certificate in the form of Exhibit A executed by an authorized officer of Borrower, (b) [Reserved;] (c) Legal counsel to Borrower shall have delivered to Lender a written legal opinion, in form and substance satisfactory to Lender and its counsel; (d) Borrower shall have delivered to Lender all applicable Landlord Waivers and Consents, warehouseman letters, bailee letters and mortgagee letters; (e) Borrower shall have executed and delivered to Lender an IRS Form 8821 in form acceptable to Lender naming Tax Guard as appointee; (f) Lender shall have received (i) copies of all insurance policies required by Section 6.5, (ii) a copy of the declarations page for such insurance policies, and (iii) certificates of insurance and applicable endorsements confirming that the Lender has been named as sole beneficiary, lender’s loss payable or additional insured, as appropriate; (g) Borrower shall have provided Lender with all information (including, including without limitation, user identifications and passwords) necessary for Lender to have on-line access to view all information regarding all of Borrower’s bank accounts; (h) Borrower shall have provided evidence satisfactory to Lender of Borrower’s compliance with the requirements of Section 6.14 (relating to tracking of payroll tax payments); (i) Lender shall have received each document (including, without limitation, any Uniform Commercial Code financing statement) required by any Loan Documents or under law or requested by Lender to be filed, registered or recorded to create in favor of Lender, a perfected first priority security interest upon the Collateral, including, without limitation, deposit account control agreements with respect to all of Borrower’s deposit accounts; (j) Lender shall have received, in form and substance satisfactory to Lender, (i) payoff letters for all existing indebtedness secured by the Collateral, (ii) evidence of the repayment in full of all existing indebtedness secured by the Collateral and termination of any and all Liens, security interests and Uniform Commercial Code financing statements relating thereto, or (iii) in the sole discretion of Lender, such existing indebtedness is (A) expressly subordinated to the Obligations of Borrower hereunder pursuant to a Subordination Agreement acceptable in form and substance to Lender, (B) matures subsequent to the Commitment Expiry Date, (C) does not require any payment other than interest during the Term, and (D) will receive no payments following an Event of Default under this Agreement; (k) Borrower shall have established Lockbox Accounts and Lender shall have received Lockbox Agreements, all in accordance with Section 2.5; (l) Lender shall have: (i) completed its examinations, the results of which shall be satisfactory in form and substance to Lender, of the Collateral, the financial statements and the books, records, business, obligations, financial condition and operational state of each Borrower and Guarantor, and each such Person shall have demonstrated to Lender’s satisfaction that (i) its operations comply, in all material respects, with all applicable federal, state, foreign and local laws, statutes and regulations, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, (ii) its operations are not the subject of any governmental investigation, evaluation or any remedial action which could reasonably be expected to result in any Material Adverse Effect, and (iii) it has no liability (whether contingent or otherwise) that would reasonably be expected to have a Material Adverse Effect; (ii) completed its legal due diligence examinations of Borrower, the results of which shall be satisfactory in form and substance to Lender, as evidenced by Lender’s execution of the Loan Documents; (iii) completed a background check of the principals of Borrower and all Guarantors and the results of such background checks are satisfactory to Lender in its sole discretion; (iv) received a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed with respect to the Borrower and Guarantor in each jurisdiction determined by Lender in its Permitted Discretion, and such report shall show no Liens on the Collateral (other than Permitted Liens and Liens that will be terminated within five (5) Business Days after the Closing Date); (v) received all fees, charges and expenses payable to Lender on or prior to the date of the Advance pursuant to the Loan Documents; (m) All corporate and other proceedings, documents, instruments and other legal matters in connection with the transactions contemplated by the Loan Documents shall be satisfactory to Lender; (n) each of the representations and warranties made by Borrower in or pursuant to this Agreement shall be accurate in all material respects on and as of the date the Advance is requested as if made on and as of such date, before and after giving effect to such Advance; and no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to the Advance under the Revolving Facility on such date; (i) No default shall exist pursuant to any of Borrower’s obligations under any material contract and Borrower shall be in compliance with all applicable laws in all material respects, in each case except to the extent such failure would not reasonably be expected to have a Material Adverse Effect, and (ii) Borrower has no accounts payable or taxes payable that have been outstanding for more than 90 days, or to the extent that such accounts payable or taxes payable exist, Borrower shall provide to Lender written evidence (satisfactory to Lender in its sole discretion) from such account creditors and/or taxing authorities of payment plans with respect thereto; (p) Immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Revolving Facility shall not exceed the Revolving Loan Limit; (q) The initial Borrowing Certificate dated the Closing Date evidencing Borrower’s Availability under the Borrowing Base as of the Closing Date which shall continue for a period of five (5) Business Days following the Closing Date, including cash on hand, shall indicate a Borrowing Base Excess in an amount not less than $1,000,000 after giving effect to the initial Revolving Loan, payment of all expenses, other fees and disbursements and the Facility Fee and all other current liabilities as of the Closing Date; (r) No event has occurred which has had or would reasonably be expected to have a Material Adverse Effect; and (s) Lender shall have received such other documents, certificates, information or legal opinions as Lender may reasonably request, all in form and substance reasonably satisfactory to Lender.
Appears in 1 contract
CONDITIONS TO CLOSING AND ADVANCES. The obligations of Lender to consummate the transactions contemplated herein and to make any Advance under the Revolving Facility are subject to the satisfaction (or waiver), in the sole judgment of Lender, of the following:
(a) Each Borrower shall have delivered to Lender:
(i) the Loan Documents to which it is a party, each duly executed by an authorized officer of Borrower and any other parties thereto;
(ii) A a Closing Certificate certifying to the organizational documents of Borrower, the good standing or existence of Borrower in its jurisdiction of organization, the adoption of resolutions approving the Loans and the incumbency of its authorized officers;
(iii) a Borrowing Certificate in the form of Exhibit A executed by an authorized officer of Borrower,
(b) [ReservedEach Guarantor shall have duly executed and delivered to Lender a Guaranty Agreement, and each Guarantor who is an equity owner of any Borrower shall have delivered to Lender a pledge of such Guarantor’s equity interest in such Borrower as security for the payment of the Obligations;]
(c) Legal counsel to each Borrower and each Guarantor shall have delivered to Lender a written legal opinion, in form and substance satisfactory to Lender and its counsel;
(d) Each Borrower shall have delivered to Lender all applicable Landlord Waivers and Consents, warehouseman letters, bailee letters and mortgagee letters;
(e) Each Borrower shall have executed and delivered to Lender an IRS Form 8821 in form acceptable to Lender naming Tax Guard as appointee;
(f) Lender shall have received (i) copies of all insurance policies required by Section 6.5, (ii) a copy of the declarations page for such insurance policies, and (iii) certificates of insurance and applicable endorsements confirming that the Lender has been named as sole beneficiary, lender’s loss payable or additional insured, as appropriate;
(g) Each Borrower shall have provided Lender with all information (including, including without limitation, user identifications and passwords) necessary for Lender to have on-line access to view all information regarding all of Borrower’s the Borrowers’ bank accounts;
(h) Each Borrower shall have provided evidence satisfactory to Lender of such Borrower’s compliance with the requirements of Section 6.14 (relating to tracking of payroll tax payments);
(i) Lender shall have received each document (including, without limitation, any Uniform Commercial Code financing statement) required by any Loan Documents or under law or requested by Lender to be filed, registered or recorded to create in favor of Lender, a perfected first priority security interest upon the Collateral, including, without limitation, deposit account control agreements with respect to all of Borrower’s deposit accounts;
(j) Lender shall have received, in form and substance satisfactory to Lender, (i) payoff letters for all existing indebtedness secured by the Collateral, (ii) evidence of the repayment in full of all existing indebtedness secured by the Collateral and termination of any and all Liens, security interests and Uniform Commercial Code financing statements relating thereto, or (iii) in the sole discretion of Lender, such existing indebtedness is (A) expressly subordinated to the Obligations of Borrower hereunder pursuant to a Subordination Agreement acceptable in form and substance to Lender, (B) matures subsequent to the Commitment Expiry Expiration Date, (C) does not require any payment other than interest during the Term, and (D) will receive no payments following an Event of Default under this Agreement;
(k) Borrower shall have established Lockbox Accounts and Lender shall have received Lockbox Agreements, all in accordance with Section 2.5;
(l) Lender shall have received a list of outstanding checks drawn on the JPMorgan Accounts as of the Closing Date;
(m) Lender shall have:
(i) completed its examinations, the results of which shall be satisfactory in form and substance to Lender, of the Collateral, the financial statements and the books, records, business, obligations, financial condition and operational state of each Borrower and Guarantor, and each such Person shall have demonstrated to Lender’s satisfaction that (i) its operations comply, in all material respects, with all applicable federal, state, foreign and local laws, statutes and regulations, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, ,
(ii) its operations are not the subject of any governmental investigation, evaluation or any remedial action which could reasonably be expected to result in any Material Adverse Effect, and (iii) it has no liability (whether contingent or otherwise) that would reasonably be expected to have a Material Adverse Effect;
; (ii) completed its legal due diligence examinations of each Borrower, the results of which shall be satisfactory in form and substance to Lender, as evidenced by Lender’s execution of the Loan Documents;
(iii) completed a background check of the principals of each Borrower and all Guarantors and the results of such background checks are satisfactory to Lender in its sole discretion;
(iv) received a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed with respect to the each Borrower and each Guarantor in each jurisdiction determined by Lender in its Permitted Discretion, and such report shall show no Liens on the Collateral (other than Permitted Liens and Liens that will be terminated within five (5) Business Days after the Closing Date);
(v) received all fees, charges and expenses payable to Lender on or prior to the date of the Advance pursuant to the Loan Documents;
(mn) All corporate and other proceedings, documents, instruments and other legal matters in connection with the transactions contemplated by the Loan Documents shall be satisfactory to Lender;
(no) each Each of the representations and warranties made by each Borrower in or pursuant to this Agreement shall be accurate in all material respects on and as of the date the Advance is requested as if made on and as of such date, before and after giving effect to such Advance; and no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to the Advance under the Revolving Facility on such date;
(i) No default shall exist pursuant to any of Borrower’s obligations under any material contract and each Borrower shall be in compliance with all applicable laws in all material respects, in each case except to the extent such failure would not reasonably be expected to have a Material Adverse Effect, and (ii) each Borrower has no accounts payable or taxes payable that have been outstanding for more than 90 days, or to the extent that such accounts payable or taxes payable exist, each Borrower shall provide to Lender written evidence (satisfactory to Lender in its sole discretion) from such account creditors and/or taxing authorities of payment plans with respect thereto;
(pq) Immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Revolving Facility shall not exceed the Revolving Loan Limit;
(q) The initial Borrowing Certificate dated the Closing Date evidencing Borrower’s Availability under the Borrowing Base as of the Closing Date which shall continue for a period of five (5) Business Days following the Closing Date, including cash on hand, shall indicate a Borrowing Base Excess in an amount not less than $1,000,000 after giving effect to the initial Revolving Loan, payment of all expenses, other fees and disbursements and the Facility Fee and all other current liabilities as of the Closing Date;
(r) No event has occurred which has had or would reasonably be expected to have a Material Adverse Effect; and;
(s) Lender shall have received such other documents, certificates, information or legal opinions as Lender may reasonably request, all in form and substance reasonably satisfactory to Lender.
Appears in 1 contract
Samples: Credit and Security Agreement (ALKALINE WATER Co INC)
CONDITIONS TO CLOSING AND ADVANCES. The obligations of Lender to consummate the transactions contemplated herein and to make any Advance under the Revolving Facility are subject to the satisfaction (or waiver)satisfaction, in the sole judgment of Lender, of the following:
(a) Borrowers shall have executed and delivered to Lender this Agreement;
(b) Each Borrower shall have executed and delivered to Lender:
(i) the Loan Documents to which it is Lender a party, each duly executed by an authorized officer of Borrower and any other parties thereto;
(ii) A Closing Certificate certifying to the organizational documents Organizational Documents of such Borrower, the good standing or existence of such Borrower in its jurisdiction of organization, the adoption of resolutions approving the Loans Revolving Facility and the incumbency of its authorized officers;
(iiic) Each Guarantor shall have duly executed and delivered to Lender a Borrowing Certificate in the form of Exhibit A executed by an authorized officer of Borrower,Guaranty Agreement;
(b) [Reserved;]
(cd) Legal counsel to Borrower Borrowers and each Guarantor shall have delivered to Lender a written legal opinion, in form and substance satisfactory to Lender and its counsel, addressing the following: (i) the organization of each Borrower and any entities that are Guarantors; (ii) the due authorization and execution of the Loan Documents; (iii) the absence of conflicts between the Loan Documents and the Organizational Documents of each Borrower and any entities that are Guarantors; and (iv) the legal, valid and binding effect of the Loan Documents;
(de) Borrower The applicable Borrower(s) shall have delivered to Lender all applicable Collateral Access Agreements and any Landlord Waivers and Consents, warehouseman letters, bailee letters and mortgagee letters;
(ef) Borrower Borrowers shall have established Controlled Deposit Accounts and Lender shall have received fully executed Control Agreements, all in accordance with Section 2.5;
(g) Borrowers shall have delivered to Lender a Borrowing Certificate in the form of Exhibit A executed by Borrowers’ authorized signatory;
(h) Borrowers shall have executed and delivered to Lender an IRS Form 8821 in form acceptable to Lender naming Tax Guard as appointee;
(fi) Lender shall have received (i) copies of all insurance policies required by Section 6.5, (ii) a copy of the declarations page for such insurance policies, policies and (iii) certificates of insurance and applicable endorsements confirming that the Lender has been named as sole beneficiary, lender’s loss payable payable, or additional insured, as appropriate;
(gj) Borrower Borrowers shall have provided Lender with all information (including, including without limitation, user identifications and passwords) necessary for Lender to have on-line online access to view all information regarding all of Borrower’s Borrowers’ bank accounts;
(hk) Borrower Borrowers shall have provided evidence satisfactory Lender with any information necessary, and taken any action necessary, for Lender to setup and implement the software interface used by Lender of Borrower’s compliance with to calculate the requirements of Section 6.14 (relating to tracking of payroll tax payments)Borrowing Base;
(i) Lender shall have received each document (including, without limitation, any Uniform Commercial Code financing statement) required by any Loan Documents or under law or requested by Lender to be filed, registered or recorded to create in favor of Lender, a perfected first priority security interest upon the Collateral, including, without limitation, deposit account control agreements with respect to all of Borrower’s deposit accounts;
(jl) Lender shall have received, in form and substance satisfactory to Lender, (i) payoff letters for all existing indebtedness secured by the Collateral, (ii) or evidence of the repayment in full of all existing indebtedness secured by the Collateral and termination of any and all Liens, security interests and Uniform Commercial Code financing statements relating thereto, thereto that is not subject to an intercreditor agreement or (iii) in the sole discretion of Lender, such existing indebtedness is (A) expressly subordinated to the Obligations of Borrower hereunder pursuant to a Subordination Agreement acceptable in form and substance to Lender, (B) matures subsequent to the Commitment Expiry Date, (C) does not require any payment other than interest during the Term, and (D) will receive no payments following an Event of Default under this Agreement;
(km) Borrower shall have established Lockbox Accounts and Lender shall have received Lockbox Agreementseach document (including any Uniform Commercial Code financing statement) required by any Loan Documents or under applicable Law or requested by Lender to be filed, all registered or recorded to create in accordance with Section 2.5favor of Lender, a perfected first priority security interest upon the Collateral (subject only to Permitted Liens);
(ln) Lender shall have:
(i) completed its examinations, the results of which shall be satisfactory in form and substance to Lender, of the Collateral, the financial statements and the books, records, business, obligations, financial condition and operational state of each Borrower and Guarantor, and each such Person shall have demonstrated to Lender’s satisfaction (as evidenced by Lender’s execution of the Loan Documents) that (i) its operations comply, in all material respects, with all applicable federal, state, foreign and local laws, statutes and regulationsLaw, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, Effect (ii) its operations are not the subject of any governmental investigation, evaluation or any remedial action which could reasonably be expected to result in any Material Adverse Effect, and (iii) it has no liability (whether contingent or otherwise) that would could reasonably be expected to have a Material Adverse Effect;
(ii) completed its legal due diligence examinations of BorrowerBorrowers, the results of which shall be satisfactory in form and substance to Lender, as evidenced by Lender’s execution of the Loan Documents;
(iii) completed a background check of the Borrowers’ principals of Borrower and all Guarantors and the results of such background checks are satisfactory to Lender in its sole discretion, as evidenced by Lender’s execution of the Loan Documents;
(iv) received a report of Uniform Commercial Code financing statementobtained, tax and judgment at Borrowers’ expense, (a) UCC lien searches performed with respect as deemed necessary or appropriate by Lender, certified by the Secretary of State of the State in which Borrowers are organized, or issued by a reputable UCC lien search company acceptable to the Borrower and Guarantor in each jurisdiction determined by Lender in its Permitted Discretionsole discretion, and such report shall show which state that there are no Liens on liens or encumbrances affecting the Collateral (or, if there are liens or encumbrances affecting the Collateral, Lender shall have approved of the same), and (b) litigation and bankruptcy searches in such jurisdictions as deemed necessary or appropriate by Lender, issued by a reputable litigation search company acceptable to Lender in its sole discretion, which state that the Borrowers are not subject to any material adverse litigation or other than Permitted Liens and Liens that will be terminated within five (5) Business Days after the Closing Date);legal proceeding; and
(v) received all fees, charges and expenses payable to Lender on or prior to the date of the Advance pursuant to the Loan Documents;
(mo) All corporate and other proceedings, documents, instruments and other legal matters in connection with the transactions contemplated by the Loan Documents shall be satisfactory to Lender;
(np) each Each of the representations and warranties made by Borrower Borrowers in or pursuant to this Agreement shall be accurate in all material respects on and as of the date the Advance is requested as if made on and as of such date, before and after giving effect to such AdvanceAdvance (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date); and no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to the Advance under the Revolving Facility on such date;
(i) No default shall exist pursuant to any of Borrower’s Borrowers’ obligations under any material contract Material Contract and Borrower Borrowers shall be in compliance with all applicable laws Laws in all material respects, in each case except to the extent such default or failure would not reasonably be expected to have a Material Adverse Effect, and (ii) Borrower has Borrowers have no material accounts payable or taxes payable that have been outstanding for are more than 90 days120 days past due (other than accounts payable and taxes subject to Permitted Contests), or to the extent that such accounts payable or taxes payable exist, Borrower Borrowers shall provide to Lender written evidence (satisfactory to Lender in its sole discretion) from such account creditors and/or creditors, and if applicable, taxing authorities of payment plans with respect thereto;
(p) Immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Revolving Facility shall not exceed the Revolving Loan Limit;
(q) The initial Borrowing Certificate dated the Closing Date evidencing Borrower’s Availability under the Borrowing Base as of the Closing Date which shall continue for a period of five (5) Business Days following the Closing Date, including cash on hand, shall indicate a Borrowing Base Excess in an amount not less than $1,000,000 after giving effect to the initial Revolving Loan, payment of all expenses, other fees and disbursements and the Facility Fee and all other current liabilities as of the Closing Date;
(r) No event has occurred which has had or would reasonably be expected to have a Material Adverse Effect; and
(s) Lender shall have received such other documents, certificates, information or legal opinions as Lender may reasonably request, all in form and substance reasonably satisfactory to Lender.
Appears in 1 contract
CONDITIONS TO CLOSING AND ADVANCES. The obligations of Lender to consummate the transactions contemplated herein and to make any Advance under the Revolving Facility are subject to the satisfaction (or waiver), in the sole judgment of Lender, of the following:
(a) Borrower shall have delivered to Lender:
(i) the Loan Documents to which it is a party, each duly executed by an authorized officer of Borrower and any other parties thereto;
(ii) A Closing Certificate certifying to the organizational documents of Borrower, the good standing or existence of Borrower in its jurisdiction of organization, the adoption of resolutions approving the Loans and the incumbency of its authorized officers;
(iii) a Borrowing Certificate in the form of Exhibit A executed by an authorized officer of Borrower,
(b) [Reserved;]
(c) Legal counsel to Borrower shall have delivered to Lender a written legal opinion, in form and substance satisfactory to Lender and its counsel, addressing the following: (i) the organization of the Borrower; (ii) the due authorization and execution of the Loan Documents; (iii) the absence of conflicts between the Loan Documents and the organizational documents of the Borrower; (iv) the legal, valid and binding effect of the Loan Documents.
(c) Borrower shall have delivered to Lender all applicable Landlord Waivers and Consents;
(d) Borrower shall have delivered to Lender all applicable Landlord Waivers and Consentslandlord, warehouseman letterswarehouseman, bailee letters and or mortgagee letters;
(e) Borrower shall have executed and delivered to Lender an IRS Form 8821 in form acceptable to Lender naming Tax Guard as appointee;
(f) Lender shall have received (i) copies of all insurance policies required by Section 6.5, (ii) a copy of the declarations page for such insurance policies, and (iii) certificates of insurance and applicable endorsements confirming that the Lender has been named as sole beneficiary, lender’s loss payable or additional insured, as appropriate;
(g) Borrower shall have provided Lender with all information (including, including without limitation, user identifications and passwords) necessary for Lender to have on-line access to view all information regarding all of Borrower’s bank accounts;
(h) Borrower shall have provided evidence satisfactory to Lender of Borrower’s compliance with the requirements of Section 6.14 (relating to tracking of payroll tax payments);
(i) Lender shall have received each document (including, without limitation, any Uniform Commercial Code financing statement) required by any Loan Documents or under law or requested by Lender to be filed, registered or recorded to create in favor of Lender, a perfected first priority security interest upon the Collateral, including, without limitation, deposit account control agreements with respect to all of Borrower’s deposit accounts;
(j) Lender shall have received, in form and substance satisfactory to Lender, (i) payoff letters for all existing indebtedness secured by the Collateral, (ii) evidence of the repayment in full of all existing indebtedness secured by the Collateral and termination of any and all Liens, security interests and Uniform Commercial Code financing statements relating thereto, or (iii) in the sole discretion of Lender, such existing indebtedness is (A) expressly subordinated to the Obligations of Borrower hereunder pursuant to a Subordination Agreement acceptable in form and substance to Lender, (B) matures subsequent to the Commitment Expiry Date, (C) does not require any payment other than interest during the Term, and (D) will receive no payments following an Event of Default under this Agreement;
(k) Borrower shall have established Lockbox Accounts and Lender shall have received Lockbox Agreements, all in accordance with Section 2.5;
(l) Lender shall have:
(i) completed its examinations, the results of which shall be satisfactory in form and substance to Lender, of the Collateral, the financial statements and the books, records, business, obligations, financial condition and operational state of each Borrower and any Guarantor, and each such Person shall have demonstrated to Lender’s satisfaction that (i) its operations comply, in all material respects, with all applicable federal, state, foreign and local laws, statutes and regulations, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, (ii) its operations are not the subject of any governmental investigation, evaluation or any remedial action which could reasonably be expected to result in any Material Adverse Effect, and (iii) it has no liability (whether contingent or otherwise) that would reasonably be expected to have a Material Adverse Effect;
(ii) completed its legal due diligence examinations of Borrower, the results of which shall be satisfactory in form and substance to Lender, as evidenced by Lender’s execution of the Loan Documents;
(iii) completed a background check of the principals of Borrower and all any Guarantors and the results of such background checks are satisfactory to Lender in its sole discretion;
(iv) received a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed with respect to the Borrower and Guarantor in each jurisdiction determined by Lender in its Permitted Discretion, and such report shall show no Liens on the Collateral (other than Permitted Liens and Liens that will be terminated within five (5) Business Days after the Closing Date);
(v) received all fees, charges and expenses payable to Lender on or prior to the date of the Advance pursuant to the Loan Documents;
(m) All corporate and other proceedings, documents, instruments and other legal matters in connection with the transactions contemplated by the Loan Documents shall be satisfactory to Lender;
(n) each of the representations and warranties made by Borrower in or pursuant to this Agreement shall be accurate in all material respects on and as of the date the Advance is requested as if made on and as of such date, before and after giving effect to such Advance; and no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to the Advance under the Revolving Facility on such date;
(i) No default shall exist pursuant to any of Borrower’s obligations under any material contract and Borrower shall be in compliance with all applicable laws in all material respects, in each case except to the extent such failure would not reasonably be expected to have a Material Adverse Effect, and (ii) Borrower has no accounts payable or taxes payable that have been outstanding for more than 90 days, or to the extent that such accounts payable or taxes payable exist, Borrower shall provide to Lender written evidence (satisfactory to Lender in its sole discretion) from such account creditors and/or taxing authorities of payment plans with respect thereto;
(p) Immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Revolving Facility shall not exceed the Revolving Loan Limit;
(q) The initial Borrowing Certificate dated the Closing Date evidencing Borrower’s Availability under the Borrowing Base as of the Closing Date which shall continue for a period of five (5) Business Days following the Closing Date, including cash on hand, shall indicate a Borrowing Base Excess in an amount not less than $1,000,000 after giving effect to the initial Revolving Loan, payment of all expenses, other fees and disbursements and the Facility Fee and all other current liabilities as of the Closing Date;
(r) No event has occurred which has had or would reasonably be expected to have a Material Adverse Effect
(r) Borrower shall have delivered to Lender a collateral assignment of all applicable Services Outsourcing Agreement, including, without limitation, the Xxxxxxx Agreement, by and between Borrower and Lender and acknowledged by each Servicer party to such Services Outsourcing Agreement; and
(s) Lender shall have received such other documents, certificates, information or legal opinions as Lender may reasonably request, all in form and substance reasonably satisfactory to Lender.
Appears in 1 contract
CONDITIONS TO CLOSING AND ADVANCES. The obligations of Lender to consummate the transactions contemplated herein and to make any Advance under the Revolving Facility and to fund the Term Loan are subject to the satisfaction (or waiver), in the sole judgment of Lender, of the following:
(a) Each Borrower shall have delivered to Lender:
(i) the Loan Documents to which it is a party, each duly executed by an authorized officer of Borrower and any other parties thereto;
(ii) A Closing Certificate certifying to the organizational documents of Borrower, the good standing or existence of Borrower in its jurisdiction of organization, the adoption of resolutions approving the Loans and the incumbency of its authorized officers;
(iii) a Borrowing Certificate in the form of Exhibit A executed by an authorized officer of Borrower,
(b) [ReservedEach Guarantor shall have duly executed and delivered to Lender a Guaranty Agreement, and each Guarantor who is an equity owner of any Borrower shall have delivered to Lender a pledge of such Guarantor’s equity interest in such Borrower as security for the payment of the Obligations;]
(c) Legal counsel to each Borrower and each Guarantor shall have delivered to Lender a written legal opinion, in form and substance satisfactory to Lender and its counsel;
(d) Each Borrower shall have delivered to Lender all applicable Landlord Waivers and Consents, warehouseman letters, bailee letters and mortgagee letters;
(e) Each Borrower shall have executed and delivered to Lender an IRS Form 8821 in form acceptable to Lender naming Tax Guard as appointee;
(f) Lender shall have received (i) copies of all insurance policies required by Section 6.5, (ii) a copy of the declarations page for such insurance policies, and (iii) certificates of insurance and applicable endorsements confirming that the Lender has been named as sole beneficiary, lender’s loss payable or additional insured, as appropriate;
(g) Each Borrower shall have provided Lender with all information (including, including without limitation, user identifications and passwords) necessary for Lender to have on-line access to view all information regarding all of Borrower’s the Borrowers’ bank accounts;
(h) Each Borrower shall have provided evidence reasonably satisfactory to Lender of such Borrower’s compliance with the requirements of Section 6.14 (relating to tracking of payroll tax payments);
(i) Lender shall have received each document (including, without limitation, any Uniform Commercial Code financing statement) required by any Loan Documents or under law or requested by Lender to be filed, registered or recorded to create in favor of Lender, a perfected first priority security interest upon the Collateral, including, without limitation, deposit account control agreements with respect to all of Borrower’s deposit accountsaccounts (other than the Excluded Deposit Accounts);
(j) Lender shall have received, in form and substance satisfactory to Lender, (i) payoff letters for all existing indebtedness secured by the Collateral, (ii) evidence of the repayment in full of all existing indebtedness secured by the Collateral and termination of any and all Liens, security interests and Uniform Commercial Code financing statements relating thereto, or (iii) in the sole discretion of Lender, such existing indebtedness is (A) expressly subordinated to the Obligations of Borrower hereunder pursuant to a Subordination Agreement acceptable in form and substance to Lender, (B) matures subsequent to the Commitment Expiry Expiration Date, (C) does not require any payment other than interest during the Term, and (D) will receive no payments following an Event of Default under this Agreement;
(k) Borrower shall have established Lockbox Accounts and Lender shall have received Lockbox Agreements, all in accordance with Section 2.5;
(l) Lender shall have:
(i) completed its examinations, the results of which shall be satisfactory in form and substance to Lender, of the Collateral, the financial statements and the books, records, business, obligations, financial condition and operational state of each Borrower and Guarantor, and each such Person shall have demonstrated to Lender’s satisfaction that (i) its operations comply, in all material respects, with all applicable federal, state, foreign and local laws, statutes and regulations, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, (ii) its operations are not the subject of any governmental investigation, evaluation or any remedial action which could reasonably be expected to result in any Material Adverse Effect, and (iii) it has no liability (whether contingent or otherwise) that would reasonably be expected to have a Material Adverse Effect;
(ii) completed its legal due diligence examinations of each Borrower, the results of which shall be satisfactory in form and substance to Lender, as evidenced by Lender’s execution of the Loan Documents;
(iii) completed a background check of the principals of each Borrower and all Guarantors and the results of such background checks are satisfactory to Lender in its sole discretion;
(iv) received a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed with respect to the each Borrower and each Guarantor in each jurisdiction determined by Lender in its Permitted Discretion, and such report shall show no Liens on the Collateral (other than Permitted Liens and Liens that will be terminated within five (5) Business Days after the Closing Date);
(v) received all fees, charges and expenses payable to Lender on or prior to the date of the Advance pursuant to the Loan Documents;
(m) All corporate and other proceedings, documents, instruments and other legal matters in connection with the transactions contemplated by the Loan Documents shall be satisfactory to Lender;
(n) each of the representations and warranties made by each Borrower in or pursuant to this Agreement shall be accurate in all material respects on and as of the date the Advance is requested as if made on and as of such date, before and after giving effect to such Advance; and no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to the Advance under the Revolving Facility or draw on the Term Loan on such date;
(i) No default shall exist pursuant to any of Borrower’s obligations under any material contract and each Borrower shall be in compliance with all applicable laws in all material respects, in each case except to the extent such failure would not reasonably be expected to have a Material Adverse Effect, and (ii) each Borrower has no accounts payable or taxes payable that have been outstanding for more than 90 days, or to the extent that such accounts payable or taxes payable exist, each Borrower shall provide to Lender written evidence (satisfactory to Lender in its sole discretion) from such account creditors and/or taxing authorities of payment plans with respect thereto;
(p) Immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Revolving Facility shall not exceed the Revolving Loan Limit;
(q) The initial Borrowing Certificate dated confirmation that the Closing Date evidencing Borrower’s Availability under Equipment Purchase shall have been consummated in accordance with the Borrowing Base as Purchase Documents, and Lender shall have received a fully executed Collateral Assignment of Purchase Documents, together with a fully executed copy of the Closing Date Purchase Documents, which shall continue for a period of five (5) Business Days following the Closing Datebe true, including cash on hand, correct and complete and shall indicate a Borrowing Base Excess otherwise be in an amount not less than $1,000,000 after giving effect form and substance reasonably satisfactory to the initial Revolving Loan, payment of all expenses, other fees and disbursements and the Facility Fee and all other current liabilities as of the Closing DateLender;
(r) Lender shall have received, in form and substance satisfactory to Lender, a letter agreement from Prima Power North America, Inc., an Illinois corporation (“Prima”), in connection with the Equipment Purchase confirming that, upon receipt by Prima of the Release Amount (as defined therein) (i) all liens and security interests of any kind of Prima on and in any and all of the equipment purchased pursuant to the Purchase Agreement or any other property shall be deemed to be released and terminated and (ii) title to all such equipment shall be deemed to have been automatically transferred from Prima to Trans-Lux;
(s) No event has occurred which has had or would reasonably be expected to have a Material Adverse Effect; and
(st) Lender shall have received such other documents, certificates, information or legal opinions as Lender may reasonably request, all in form and substance reasonably satisfactory to Lender.
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