Conditions to Initial Advances. The agreement of Lenders to make the initial Advances requested to be made on the Closing Date is subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with the making of such Advances, of the following conditions precedent: (a) The Agent shall have received a certificate of each of the Loan Parties signed by an Authorized Officer, dated the Closing Date stating that the Loan Parties are in compliance with each of their representations, warranties, covenants and conditions hereunder and no Event of Default or Default exists and no Material Adverse Change has occurred since the date of the last audited financial statements of ATI and its Subsidiaries delivered to the Agent; (b) The Agent shall have received a certificate dated the Closing Date and signed by the Secretary, an Assistant Secretary, Officer or Manager, as the case may be, of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with 222233776 this Agreement and the Other Documents; (b) the names of the Authorized Officers authorized to sign this Agreement and the Other Documents and their true signatures; and (c) copies of its Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business; (c) The Agent shall have received good standing certificates, or similar certifications, for each Loan Party dated not more than sixty (60) days prior to the Closing Date, issued by the Secretary of State or other appropriate official of each Loan Party's jurisdiction of incorporation or formation, as the case may be, and each jurisdiction where the conduct of each entity's business activities or the ownership of each such entity's properties necessitates qualification; (d) The Agent shall have received this Agreement and each of the Other Documents signed by an Authorized Officer; (e) The Agent shall have received written opinion(s) of counsel for the Loan Parties, dated the Closing Date for the benefit of the Agent and each Lender and in form and substance satisfactory to the Agent and its counsel; (f) The Agent shall have received, in form and substance satisfactory to Agent, (i) evidence that insurance required to be maintained under this Agreement is in full force and effect, (ii) insurance certificates issued by the Loan Parties' insurance broker containing such information regarding the Loan Parties' casualty and liability insurance policies as Agent shall request and naming Agent as an additional insured and lenders loss payee as provided herein, and (iii) lender loss payable endorsements issued by the Loan Parties' insurer naming Agent as lenders loss payee to the extent provided herein; (g) The Agent shall have received from the Borrowers a Borrowing Base Certificate as of August 31. 2019 demonstrating that (1) the aggregate amount of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers on the Closing Date, (2) after giving effect to the initial Advances hereunder, Borrowers shall have Undrawn Availability of at least Two Hundred and Fifty Million and 00/100 Dollars($250,000,000.00), and (3) the Average Undrawn Availability as of the Closing Date after giving effect to the initial Advances hereunder; (h) The Agent shall have received any and all Consents necessary to permit the effectuation of the transactions contemplated by this Agreement and the Other Documents; and, Agent shall have received such Consents and waivers of such third parties as might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessary; (i) The Agent shall have received a copy of the Projections in form and substance satisfactory to the Agent; (j) Lien searches for each of the Loan Parties in acceptable scope and with results acceptable to the Agent; 222233776 (k) The Agent shall have received (i) evidence acceptable to the Agent that all existing Indebtedness that is to be paid by initial Advances hereunder will be paid in full, and (ii) evidence satisfactory to Agent that all necessary termination statements, satisfaction documents and any other applicable releases in connection with any such existing Indebtedness and all other Liens with respect to Loan Parties that are not Permitted Encumbrances have been filed or arrangements satisfactory to Agent have been made for such filing;
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Allegheny Technologies Inc)
Conditions to Initial Advances. The agreement obligations of the Lenders to to, on and after the Closing Date, continue advances outstanding under the Existing Credit Agreement as Advances hereunder, make the initial Advances requested to be made hereunder and receive through the Agent the initial Competitive Bid Request and the initial Notice of Conversion/Continuation, and the obligation of the Issuing Lender to, on and after the Closing Date is Date, continue any letter of credit outstanding under the Existing Credit Agreement as a Letter of Credit hereunder and issue any Letter of Credit hereunder, are subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with the making of such Advances, of the following conditions precedent, each of which shall be satisfied prior to or on the Closing Date:
(a) The Agent shall have received all of the following in form and substance reasonably satisfactory to the Agent and legal counsel for the Agent (unless otherwise specified or unless the Agent otherwise agrees):
(1) executed counterparts of this Agreement signed by the Borrower, the Agent and at least the Majority Lenders, sufficient in number for distribution to the Borrower, the Agent and each Lender;
(2) with respect to each Guarantor: (i) if the certificate of incorporation of any Guarantor that was a guarantor under the Existing Credit Agreement has been amended since the date last delivered to the Agent, a copy of such certificate and the bylaws of such Guarantor as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of such Guarantor as of the Closing Date; (ii) with respect to each other Guarantor, its certificate of incorporation and bylaws as in effect on the Closing Date, certified by the secretary of state of the state of its incorporation as of a recent date and by the Secretary or Assistant Secretary of such Guarantor as of the Closing Date; and (iii) a good standing certificate for each Guarantor from the secretary of state of the state of its incorporation;
(3) certified copies of (i) the resolutions of the Board of Directors of the Borrower and each Guarantor approving this Agreement and each other Loan Document to which it is or is to be a party and the transactions contemplated hereby and thereby, and (ii) all documents evidencing other necessary corporate action and governmental approvals with respect to each Loan Document and the transactions contemplated thereby;
(4) a certificate of each the Secretary or an Assistant Secretary of the Borrower and each Guarantor certifying the names and true signatures of the officers of such Loan Parties Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered by it hereunder which certificates may be conclusively relied on by the Agent until the Agent shall receive a further certification of the Secretary or Assistant Secretary of such Loan Party cancelling or amending the prior certificate of such Loan Party and submitting the names and signatures of the officers named in such further certificate;
(5) a certificate signed by an Authorized Officera Senior Officer of the Borrower, dated as of the Closing Date stating that that: (i) the Loan Parties representations and warranties contained in Article V are in compliance with each true and correct on and as of their representations, warranties, covenants and conditions hereunder and the Closing Date; (ii) no Default or Event of Default or Default exists on the Closing Date; and no Material Adverse Change (iii) there has occurred since June 28, 1996, no event or circumstance that constitutes a Material Adverse Effect;
(6) such other assurances, certificates, documents, consents or opinions as the date of the last audited financial statements of ATI and its Subsidiaries delivered to the Agent;Agent may reasonably require.
(b) The Agent shall have received a certificate dated the Closing Date fees described in Section 2.03(a) and signed by the Secretary, an Assistant Secretary, Officer or Manager, as the case may be, of each of the Loan Parties, certifying as appropriate as to: (a2.03(b) all action taken by each Loan Party in connection with 222233776 this Agreement and the Other Documents; (b) the names of the Authorized Officers authorized to sign this Agreement and the Other Documents and their true signatures; and (c) copies of its Organizational Documents as in effect due on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessDate;
(c) The Agent shall have received good standing certificates, or similar certifications, for each Loan Party dated not more than sixty (60) days prior reasonable allocated fees and expenses of Bank of America's inhouse counsel invoiced to the Closing Date, issued relating to the Loan Documents shall have been paid by the Secretary of State or other appropriate official of each Loan Party's jurisdiction of incorporation or formation, as the case may be, and each jurisdiction where the conduct of each entity's business activities or the ownership of each such entity's properties necessitates qualificationBorrower;
(d) The Agent representations and warranties contained in Article V shall have received this Agreement be true and each of the Other Documents signed by an Authorized Officercorrect in all material respects;
(e) The Agent No Default or Event of Default shall have received written opinion(s) of counsel for the Loan Parties, dated the Closing Date for the benefit of the Agent occurred and each Lender and in form and substance satisfactory to the Agent and its counsel;be continuing; and
(f) The Agent Each Lender shall have received, in form and substance satisfactory to Agent, (i) evidence that insurance required to be maintained under this Agreement is in full force and effect, (ii) insurance certificates issued by the Loan Parties' insurance broker containing such information regarding the Loan Parties' casualty and liability insurance policies as Agent shall request and naming Agent as an additional insured and lenders loss payee as provided herein, and (iii) lender loss payable endorsements issued by the Loan Parties' insurer naming Agent as lenders loss payee to the extent provided herein;
(g) The Agent shall have received from the Borrowers a Borrowing Base Certificate as of August 31. 2019 demonstrating that (1) the aggregate amount of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers on the Closing Date, (2) after giving effect to the initial Advances hereunder, Borrowers shall have Undrawn Availability of at least Two Hundred and Fifty Million and 00/100 Dollars($250,000,000.00), and (3) the Average Undrawn Availability as of the Closing Date after giving effect to the initial Advances hereunder;
(h) The Agent shall have received any and all Consents necessary to permit the effectuation of the transactions contemplated by this Agreement and the Other Documents; and, Agent shall have received such Consents and waivers of such third parties as might assert claims satisfactorily completed its due diligence with respect to the Collateral, as Agent and its counsel shall deem necessary;
(i) The Agent shall have received a copy of the Projections in form and substance satisfactory to the Agent;
(j) Lien searches for each of the Loan Parties in acceptable scope and with results acceptable to the Agent; 222233776
(k) The Agent shall have received (i) evidence acceptable to the Agent that all existing Indebtedness that is to be paid by initial Advances hereunder will be paid in full, and (ii) evidence satisfactory to Agent that all necessary termination statements, satisfaction documents and any other applicable releases in connection with any such existing Indebtedness and all other Liens with respect to Loan Parties that are not Permitted Encumbrances have been filed or arrangements satisfactory to Agent have been made for such filing;this Agreement.
Appears in 1 contract
Conditions to Initial Advances. The agreement obligations of the Lenders (including the Swingline Lender) to make Loans and the initial Advances requested obligation of the Issuing Banks to be made issue any Letters of Credit hereunder shall not become effective until the date on the Closing Date is subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with the making of such Advances, which each of the following conditions precedent:is satisfied (or waived in accordance with Section 10.2):
(a) The Administrative Agent shall have received payment of all fees, expenses and other amounts due and payable on or prior to the Initial Funding Date, including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Sole Lead Arranger and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrowers hereunder, under any other Loan Document and under any agreement with the Administrative Agent or the Sole Lead Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a certificate favorable written opinion of Xxxx Xxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent, the Issuing Banks and each of the Lenders, and covering such matters relating to the Loan Parties signed by an Authorized OfficerParties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(ii) a certificate in the form of Exhibit 3.1(b)(v), dated the Closing Date stating and signed by a Responsible Officer, certifying that after giving effect to the Loan Parties are in compliance with each funding of their representationsany initial Revolving Borrowing, warranties, covenants and conditions hereunder and (x) no Default or Event of Default or Default exists exists, (y) all representations and no warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Change has occurred Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) and (z) since the date of the last audited financial statements of ATI and its Subsidiaries delivered the Borrowers described in Section 4.4, there shall have been no change which has had or could reasonably be expected to the Agenthave a Material Adverse Effect;
(biii) The Agent a duly executed Notice of Borrowing for any initial Revolving Borrowing;
(iv) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(v) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have received expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(vi) a certificate certificate, dated the Closing Date and signed by the Secretarychief financial officer of each Loan Party, an Assistant Secretaryconfirming that each Loan Party is Solvent before and after giving effect to the funding of any initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date and that after giving pro forma effect to the transactions contemplated hereby, Officer the ratio of (x) Consolidated Total Indebtedness as of the Closing Date to (y) Consolidated EBITDA for the four consecutive Fiscal Quarters ending on March 31, 2013 shall not exceed 1.00:1.00;
(vii) the Guaranty and Security Agreement, duly executed by the Borrowers, together with (A) UCC financing statements and other applicable documents under the laws of all necessary or Managerappropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the case may beAdministrative Agent in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of each UCC, tax, judgment and fixture lien search reports in all necessary jurisdictions and under all legal and trade names of the Loan Parties, certifying as appropriate as to: (a) all action taken requested by each Loan Party in connection with 222233776 this Agreement and the Other Documents; (b) the names Administrative Agent, indicating that there are no prior Liens on any of the Authorized Officers authorized to sign this Agreement Collateral other than Permitted Liens and the Other Documents and their true signatures; and (c) copies of its Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(c) The Agent shall have received good standing certificates, or similar certifications, for each Loan Party dated not more than sixty (60) days prior to the Closing Date, issued by the Secretary of State or other appropriate official of each Loan Party's jurisdiction of incorporation or formation, as the case may be, and each jurisdiction where the conduct of each entity's business activities or the ownership of each such entity's properties necessitates qualification;
(d) The Agent shall have received this Agreement and each of the Other Documents signed by an Authorized Officer;
(e) The Agent shall have received written opinion(s) of counsel for the Loan Parties, dated the Closing Date for the benefit of the Agent and each Lender and in form and substance satisfactory to the Agent and its counsel;
(f) The Agent shall have received, in form and substance satisfactory to Agent, (i) evidence that insurance required Liens to be maintained under this Agreement is in full force and effect, (ii) insurance certificates issued by the Loan Parties' insurance broker containing such information regarding the Loan Parties' casualty and liability insurance policies as Agent shall request and naming Agent as an additional insured and lenders loss payee as provided herein, and (iii) lender loss payable endorsements issued by the Loan Parties' insurer naming Agent as lenders loss payee to the extent provided herein;
(g) The Agent shall have received from the Borrowers a Borrowing Base Certificate as of August 31. 2019 demonstrating that (1) the aggregate amount of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers released on the Closing Date, (2C) after giving effect a Perfection Certificate, duly completed and executed by the Borrowers, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, (E) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries owned directly by any Loan Party (or, if the pledge of all of the voting Capital Stock of any Foreign Subsidiary would result in materially adverse tax consequences, limited to 65% of the initial Advances hereunderissued and outstanding voting Capital Stock of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, Borrowers shall have Undrawn Availability of at least Two Hundred and Fifty Million and 00/100 Dollars($250,000,000.00), as applicable) and (3F) the Average Undrawn Availability as stock or membership interest powers or other appropriate instruments of the Closing Date after giving effect to the initial Advances hereunder;transfer executed in blank; and
(hviii) The Agent shall have received any and all Consents necessary to permit the effectuation copies of the transactions contemplated by this Agreement and the Other Documents; andduly executed payoff letters, Agent shall have received such Consents and waivers of such third parties as might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessary;
(i) The Agent shall have received a copy of the Projections in form and substance reasonably satisfactory to the Administrative Agent;
, executed by the Existing Lender or the administrative agent thereof, together with (ja) Lien searches for each UCC-3 or other appropriate termination statements, in form and substance reasonably satisfactory to the Administrative Agent, releasing all liens of the Loan Parties Existing Lender upon any of the personal property of the Borrowers and their Subsidiaries, (b) cancellations and releases, in acceptable scope form and with results acceptable substance reasonably satisfactory to the Administrative Agent; 222233776
(k) The Agent shall have received (i) evidence acceptable to , releasing all liens of the Agent that all existing Indebtedness that is to be paid by initial Advances hereunder will be paid in fullExisting Lender upon any of the real property of the Borrowers and their Subsidiaries, and (iic) evidence satisfactory to Agent that all necessary termination statements, satisfaction documents and any other applicable releases in connection with any such existing releases, terminations or other documents reasonably required by the Administrative Agent to evidence the payoff of Indebtedness and all other Liens with respect owed to Loan Parties that are not Permitted Encumbrances the Existing Lender.
(c) All conditions precedent to the Closing Date IPO, shall have been filed satisfied, and the Closing Date IPO shall be consummated prior to or arrangements satisfactory to Agent have been made for such filing;simultaneously with the closing and funding of the Loans.
Appears in 1 contract
Samples: Revolving Credit Agreement (Fox Factory Holding Corp)
Conditions to Initial Advances. The agreement obligations of the Lenders (including the Swingline Lender) to make Loans and the initial Advances requested obligation of the Issuing Banks to be made issue any Letters of Credit hereunder shall not become effective until the date on the Closing Date is subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with the making of such Advances, which each of the following conditions precedent:is satisfied (or waived in accordance with Section 10.2):
(a) The Administrative Agent shall have received payment of all fees, expenses and other amounts due and payable on or prior to the Initial Funding Date, including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Sole Lead Arranger and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrowers hereunder, under any other Loan Document and under any agreement with the Administrative Agent or the Sole Lead Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a certificate favorable written opinion of Xxxx Xxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent, the Issuing Banks and each of the Lenders, and covering such matters relating to the Loan Parties signed by an Authorized OfficerParties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(ii) a certificate in the form of Exhibit 3.1(b)(v), dated the Closing Date stating and signed by a Responsible Officer, certifying that after giving effect to the Loan Parties are in compliance with each funding of their representationsany initial Revolving Borrowing, warranties, covenants and conditions hereunder and (x) no Default or Event of Default or Default exists exists, (y) all representations and no warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Change has occurred Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) and (z) since the date of the last audited financial statements of ATI and its Subsidiaries delivered the Borrowers described in Section 4.4, there shall have been no change which has had or could reasonably be expected to the Agenthave a Material Adverse Effect;
(biii) The Agent a duly executed Notice of Borrowing for any initial Revolving Borrowing;
(iv) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(v) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have received expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(vi) a certificate certificate, dated the Closing Date and signed by the Secretarychief financial officer of each Loan Party, an Assistant Secretaryconfirming that each Loan Party is Solvent before and after giving effect to the funding of any initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date and that after giving pro forma effect to the transactions contemplated hereby, Officer the ratio of (x) Consolidated Total Indebtedness as of the Closing Date to (y) Consolidated EBITDA for the four consecutive Fiscal Quarters ending on [March 31, 2013] shall not exceed 1.00:1.00;
(vii) the Guaranty and Security Agreement, duly executed by the Borrowers, together with (A) UCC financing statements and other applicable documents under the laws of all necessary or Managerappropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the case may beAdministrative Agent in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of each UCC, tax, judgment and fixture lien search reports in all necessary jurisdictions and under all legal and trade names of the Loan Parties, certifying as appropriate as to: (a) all action taken requested by each Loan Party in connection with 222233776 this Agreement and the Other Documents; (b) the names Administrative Agent, indicating that there are no prior Liens on any of the Authorized Officers authorized to sign this Agreement Collateral other than Permitted Liens and the Other Documents and their true signatures; and (c) copies of its Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(c) The Agent shall have received good standing certificates, or similar certifications, for each Loan Party dated not more than sixty (60) days prior to the Closing Date, issued by the Secretary of State or other appropriate official of each Loan Party's jurisdiction of incorporation or formation, as the case may be, and each jurisdiction where the conduct of each entity's business activities or the ownership of each such entity's properties necessitates qualification;
(d) The Agent shall have received this Agreement and each of the Other Documents signed by an Authorized Officer;
(e) The Agent shall have received written opinion(s) of counsel for the Loan Parties, dated the Closing Date for the benefit of the Agent and each Lender and in form and substance satisfactory to the Agent and its counsel;
(f) The Agent shall have received, in form and substance satisfactory to Agent, (i) evidence that insurance required Liens to be maintained under this Agreement is in full force and effect, (ii) insurance certificates issued by the Loan Parties' insurance broker containing such information regarding the Loan Parties' casualty and liability insurance policies as Agent shall request and naming Agent as an additional insured and lenders loss payee as provided herein, and (iii) lender loss payable endorsements issued by the Loan Parties' insurer naming Agent as lenders loss payee to the extent provided herein;
(g) The Agent shall have received from the Borrowers a Borrowing Base Certificate as of August 31. 2019 demonstrating that (1) the aggregate amount of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers released on the Closing Date, (2C) after giving effect a Perfection Certificate, duly completed and executed by the Borrowers, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, (E) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries owned directly by any Loan Party (or, if the pledge of all of the voting Capital Stock of any Foreign Subsidiary would result in materially adverse tax consequences, limited to 65% of the initial Advances hereunderissued and outstanding voting Capital Stock of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, Borrowers shall have Undrawn Availability of at least Two Hundred and Fifty Million and 00/100 Dollars($250,000,000.00), as applicable) and (3F) the Average Undrawn Availability as stock or membership interest powers or other appropriate instruments of the Closing Date after giving effect to the initial Advances hereunder;transfer executed in blank; and
(hviii) The Agent shall have received any and all Consents necessary to permit the effectuation copies of the transactions contemplated by this Agreement and the Other Documents; andduly executed payoff letters, Agent shall have received such Consents and waivers of such third parties as might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessary;
(i) The Agent shall have received a copy of the Projections in form and substance reasonably satisfactory to the Administrative Agent;
, executed by the Existing Lender or the administrative agent thereof, together with (ja) Lien searches for each UCC-3 or other appropriate termination statements, in form and substance reasonably satisfactory to the Administrative Agent, releasing all liens of the Loan Parties Existing Lender upon any of the personal property of the Borrowers and their Subsidiaries, (b) cancellations and releases, in acceptable scope form and with results acceptable substance reasonably satisfactory to the Administrative Agent; 222233776
(k) The Agent shall have received (i) evidence acceptable to , releasing all liens of the Agent that all existing Indebtedness that is to be paid by initial Advances hereunder will be paid in fullExisting Lender upon any of the real property of the Borrowers and their Subsidiaries, and (iic) evidence satisfactory to Agent that all necessary termination statements, satisfaction documents and any other applicable releases in connection with any such existing releases, terminations or other documents reasonably required by the Administrative Agent to evidence the payoff of Indebtedness and all other Liens with respect owed to Loan Parties that are not Permitted Encumbrances the Existing Lender.
(c) All conditions precedent to the Closing Date IPO, shall have been filed satisfied, and the Closing Date IPO shall be consummated prior to or arrangements satisfactory to Agent have been made for such filing;simultaneously with the closing and funding of the Loans.
Appears in 1 contract
Samples: Revolving Credit Agreement (Fox Factory Holding Corp)
Conditions to Initial Advances. The agreement of Lenders to make the initial Advances requested to be made on the Closing Date is subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with the making of such Advances, of the following conditions precedent:
(a) The Agent shall have received the Note duly executed and delivered by an authorized officer of Borrower;
(b) Each document (including any Uniform Commercial Code financing statement or similar document under the laws of Canada or any province contained therein) required by this Agreement, any related agreement or under law or reasonably requested by the Agent to be filed, registered or recorded in order to create, in favor of Agent, a perfected security interest in or lien upon the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation and satisfactory evidence of the payment of any necessary fee, tax or expense relating thereto;
(c) Agent shall have received a copy of the resolutions in form and substance reasonably satisfactory to Agent, of the Management Committee of Borrower authorizing (i) the execution, delivery and performance of this Agreement, the Note, the Mortgage, the Other Documents, and any related agreements and (ii) the granting by Borrower of the security interests in and liens upon the Collateral in each case certified by the Secretary or an Assistant Secretary of Borrower as of the Closing Date; and, such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(d) Agent shall have received a certificate of each the Secretary or an Assistant Secretary of the Loan Parties signed by an Authorized OfficerBorrower, dated the Closing Date stating that Date, as to the Loan Parties are in compliance with each of their representations, warranties, covenants incumbency and conditions hereunder and no Event of Default or Default exists and no Material Adverse Change has occurred since the date signature of the last audited financial statements officers of ATI and its Subsidiaries Borrower executing this Agreement, the Other Documents, any certificate or other documents to be delivered to by it pursuant hereto, together with evidence of the Agentincumbency of such Secretary or Assistant Secretary;
(be) The Agent shall have received a certificate dated the Closing Date and signed by the Secretary, an Assistant Secretary, Officer or Manager, as the case may be, of each copy of the Loan PartiesCertificate of Formation of Borrower, certifying as appropriate as to: (a) and all action taken by each Loan Party in connection with 222233776 this Agreement and the Other Documents; (b) the names of the Authorized Officers authorized to sign this Agreement and the Other Documents and their true signatures; and (c) copies of its Organizational Documents as in effect on the Closing Date amendments thereto, certified by the Secretary of State or other appropriate state official where such documents are filed in a state office of its jurisdiction of formation, together with certificates from copies of the appropriate state officials Operating Agreement of Borrower and all agreements of Borrower’s members certified as to accurate and complete by the continued existence and good standing Secretary of each Loan Party in each state where organized or qualified to do businessBorrower;
(cf) The Agent shall have received good standing certificates, or similar certifications, certificates for each Loan Party Borrower dated not more than sixty ten (6010) days prior to the Closing Date, issued by the Secretary of State or other appropriate official of each Loan Party's Borrower’s jurisdiction of incorporation or formation, as the case may be, formation and each jurisdiction where the conduct of each entity's Borrower’s business activities or the ownership of each such entity's its properties necessitates qualification;
(dg) The Agent shall have received this Agreement and each the executed legal opinion of the Other Documents signed by an Authorized Officer;
(e) The Agent shall have received written opinion(s) of counsel for the Loan PartiesDickinson, dated the Closing Date for the benefit of the Agent and each Lender and Mackaman, Tyler & Xxxxx, P.C. in form and substance satisfactory to Agent which shall cover such matters incident to the transactions contemplated by this Agreement, the Note, the Other Documents and related agreements as Agent may reasonably require and Borrower hereby authorizes and directs such counsel to deliver such opinions to Agent and its counselLenders;
(fh) The Agent shall have receivedreceived the executed legal opinion of Fasken Xxxxxxxxx DuMoulin LLP in form and substance satisfactory to Agent which shall cover such Canadian matters incident to the transactions contemplated by this Agreement, the Note, the Other Documents and related agreements as Agent may reasonably require;
(i) (i) No litigation, investigation or proceeding before or by any arbitrator or Governmental Body shall be continuing or threatened against Borrower or against the officers, directors or managers of Borrower (A) in connection with this Agreement, the Other Documents or any of the transactions contemplated thereby and which, in the reasonable opinion of Agent, is deemed material or (B) which could, in the reasonable opinion of Agent, have a Material Adverse Effect, and (ii) no injunction, writ, restraining order or other order of any nature materially adverse to Borrower or the conduct of its business or inconsistent with the due consummation of the Transactions shall have been issued by any Governmental Body;
(j) Agent shall have received an executed Financial Condition Certificate in the form of Exhibit 8.1(j).
(k) Agent shall have completed Collateral examinations and received appraisals, the results of which shall be satisfactory in form and substance to Lenders, of the Accounts, Inventory, General Intangibles, Real Property, Leasehold Interests and Equipment of Borrower and all books and records in connection therewith;
(l) Agent shall have received all fees payable to Agent and Lenders on or prior to the Closing Date hereunder, including pursuant to Article III hereof;
(m) Agent shall have received a copy of the Pro Forma Financial Statements which shall be satisfactory in all respects to Lenders;
(n) Agent shall have received in form and substance satisfactory to Agent, (i) evidence that certified copies of Borrower’s casualty insurance required to be maintained under this Agreement is in full force and effectpolicies, (ii) insurance certificates issued by the Loan Parties' insurance broker containing such information regarding the Loan Parties' casualty and liability insurance policies as Agent shall request and together with loss payable endorsements on Agent’s standard form of loss payee endorsement naming Agent as an additional insured and lenders loss payee as provided hereinpayee, and (iii) lender loss payable certified copies of Borrower’s liability insurance policies, together with endorsements issued by the Loan Parties' insurer naming Agent as lenders loss payee to the extent provided hereina co-insured;
(go) The Environmental Reports. Agent shall have received all environmental studies and reports prepared by independent environmental engineering firms with respect to all Real Property owned or leased by Borrower;
(p) Agent shall have received written instructions from Borrower directing the Borrowers a Borrowing Base Certificate as application of August 31. 2019 demonstrating that (1) the aggregate amount proceeds of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers on the Closing Date, (2) after giving effect to the initial Advances hereunder, Borrowers shall have Undrawn Availability of at least Two Hundred and Fifty Million and 00/100 Dollars($250,000,000.00), and (3) the Average Undrawn Availability as of the Closing Date after giving effect made pursuant to the initial Advances hereunderthis Agreement;
(hq) The Agent shall have received duly executed deposit account control agreements for the Borrower’s Deposit Accounts;
(r) Agent shall have received any and all Consents necessary to permit the effectuation of the transactions contemplated by this Agreement and the Other Documents; and, Agent shall have received such Consents and waivers of such third parties as might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessary;
(i) The since September 30, 2005, there shall not have occurred any event, condition or state of facts which could reasonably be expected to have a Material Adverse Effect and (ii) no representations made or information supplied to Agent or Lenders shall have been proven to be inaccurate or misleading in any material respect;
(t) Agent shall have received a copy of landlord agreements satisfactory to Agent with respect to the Projections premises leased by Borrower from Garmar Grain, Inc., MC Soya Canada Ltd, Westway Terminal Company, Inc. and Xxxxxx Xxxxxx Terminals, LLC;
(u) Agent shall have received the executed control agreements from FCStone, LLC and FCStone Trading and Other Documents in form and substance satisfactory to the Agent;
(jv) Lien searches for each Agent shall have reviewed all material contracts of the Loan Parties Borrower including leases, union contracts, labor contracts, vendor supply contracts, license agreements and distributorship agreements and such contracts and agreements shall be satisfactory in acceptable scope and with results acceptable all respects to the Agent; 222233776;
(kw) The Agent shall have received a closing certificate signed by the President or Chief Financial Officer of Borrower dated as of the date hereof, stating that (i) evidence acceptable to all representations and warranties set forth in this Agreement and the Agent that all existing Indebtedness that is to be paid by initial Advances hereunder will be paid in fullOther Documents are true and correct on and as of such date, and (ii) Borrower is on such date in compliance with all the terms and provisions set forth in this Agreement and the Other Documents and (iii) on such date no Default or Event of Default has occurred or is continuing;
(x) Agent shall have received evidence satisfactory from Borrower that the aggregate amount of Eligible Accounts, Eligible Hedge Margin Net Liquidation Value, and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrower on the Closing Date;
(y) Agent shall be reasonably satisfied that Borrower is in compliance with all necessary termination statementspertinent federal, satisfaction documents and any other applicable releases in connection with any such existing Indebtedness and all other Liens state, local or territorial regulations, including those with respect to Loan Parties that are not Permitted Encumbrances the Federal Occupational Safety and Health Act, the Environmental Protection Act, ERISA and the Trading with the Enemy Act; and
(z) Agent shall have been filed or arrangements satisfactory to Agent have been made for such filing;received the executed Subordination Agreements.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (FCStone Group, Inc.)
Conditions to Initial Advances. The agreement obligations of the ------------------------------ Lenders to to, on and after the Closing Date, continue advances outstanding under the Existing Credit Agreement as Advances hereunder, make the initial Advances requested to be made hereunder and receive through the Agent the initial Competitive Bid Request and the initial Notice of Conversion/Continuation, and the obligation of the Issuing Bank to, on and after the Closing Date is Date, continue any letter of credit outstanding under the Existing Credit Agreement as a Letter of Credit hereunder and issue any Letter of Credit hereunder, are subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with the making of such Advances, of the following conditions precedent, each of which shall be satisfied prior to or on the Closing Date:
(a) The Agent shall have received all of the following in form and substance reasonably satisfactory to the Agent and legal counsel for the Agent (unless otherwise specified or unless the Agent otherwise agrees):
(1) executed counterparts of this Agreement, sufficient in number for distribution to the Borrower, the Agent and each Lender;
(2) the Committed Advance Notes, executed by the Borrower in favor of each Lender requesting a Committed Advance Note, each in a principal amount equal to that Lender's Pro Rata Share of the Total Commitment;
(3) the Bid Advance Notes, executed by the Borrower in favor of each Lender, each in a principal amount equal to $137,500,000;
(4) with respect to Sunrise: (i) the certificate of incorporation of Sunrise as in effect on the Closing Date, certified by the secretary of state of the state of Delaware as of a recent date and by the Secretary or Assistant Secretary of Sunrise as of the Closing Date; (ii) the bylaws of Sunrise as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of Sunrise as of the Closing Date; and (iii) a good standing certificate for Sunrise from the secretary of state of the states of Delaware and California dated as of a recent date;
(5) with respect to each Guarantor: (i) if the certificate of incorporation of any Guarantor that was a guarantor under the Existing Credit Agreement has been amended since the date last delivered to the Agent, a copy of such certificate and the bylaws of such Guarantor as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of such Guarantor as of the Closing Date; (ii) with respect to each other Guarantor, its certificate of incorporation and bylaws as in effect on the Closing Date, certified by the secretary of state of the state of its incorporation as of a recent date and by the Secretary or Assistant Secretary of such Guarantor as of the Closing Date; and (iii) a good standing certificate for each Guarantor from the secretary of state of the state of its incorporation;
(6) certified copies of (i) the resolutions of the Board of Directors of the Borrower and each Guarantor approving this Agreement and each other Loan Document to which it is or is to be a party and the transactions contemplated hereby and thereby, and (ii) all documents evidencing other necessary corporate action and governmental approvals with respect to each Loan Document and the transactions contemplated thereby;
(7) a certificate of each the Secretary or an Assistant Secretary of the Borrower and each Guarantor certifying the names and true signatures of the officers of such Loan Parties Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered by it hereunder which certificates may be conclusively relied on by the Agent until the Agent shall receive a further certification of the Secretary or Assistant Secretary of such Loan Party cancelling or amending the prior certificate of such Loan Party and submitting the names and signatures of the officers named in such further certificate;
(8) a certificate signed by an Authorized Officera Senior Officer of the Borrower, dated as of the Closing Date stating that that: (i) the Loan Parties representations and warranties contained in Article V are in compliance with each true and correct on and as of their representations, warranties, covenants and conditions hereunder and the Closing Date; (ii) no Default or Event of Default or Default exists on the Closing Date; and no Material Adverse Change (iii) there has occurred since June 30, 1995, no event or circumstance that constitutes a Material Adverse Effect;
(9) the date of the last audited financial statements described in Section 5.05, together with a Compliance Certificate calculated as of ATI June 30, 1995;
(10) favorable opinions of Xxxxxx & Xxxxxxx, counsel for the Borrower, and its Subsidiaries delivered Xxxxxxx & Xxxx, special Wisconsin counsel, as to the Agent;Borrower and all Guarantors; and
(11) such other assurances, certificates, documents, consents or opinions as the Agent may reasonably require.
(b) The Agent shall have received a certificate dated the Closing Date and signed by the Secretary, an Assistant Secretary, Officer or Manager, as the case may be, of each of the Loan Parties, certifying as appropriate as to: fees described in Section 2.03
(a) all action taken by each Loan Party in connection with 222233776 this Agreement for its and the Other Documents; (b) the names of the Authorized Officers authorized to sign this Agreement and the Other Documents and their true signatures; and (c) copies of its Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessArranger's account;
(c) The Agent shall have received good standing certificates, or similar certifications, for each Loan Party dated not more than sixty (60) days prior reasonable allocated fees and expenses of Bank of America's inhouse counsel invoiced to the Closing Date, issued relating to the Loan Documents shall have been paid by the Secretary of State or other appropriate official of each Loan Party's jurisdiction of incorporation or formation, as the case may be, and each jurisdiction where the conduct of each entity's business activities or the ownership of each such entity's properties necessitates qualificationBorrower;
(d) The Agent representations and warranties contained in Article V shall have received this Agreement be true and each of the Other Documents signed by an Authorized Officercorrect in all material respects;
(e) The Agent No Default or Event of Default shall have received written opinion(s) of counsel for the Loan Parties, dated the Closing Date for the benefit of the Agent occurred and each Lender and in form and substance satisfactory to the Agent and its counsel;be continuing; and
(f) The Agent Each Lender shall have received, in form and substance satisfactory to Agent, (i) evidence that insurance required to be maintained under this Agreement is in full force and effect, (ii) insurance certificates issued by the Loan Parties' insurance broker containing such information regarding the Loan Parties' casualty and liability insurance policies as Agent shall request and naming Agent as an additional insured and lenders loss payee as provided herein, and (iii) lender loss payable endorsements issued by the Loan Parties' insurer naming Agent as lenders loss payee to the extent provided herein;
(g) The Agent shall have received from the Borrowers a Borrowing Base Certificate as of August 31. 2019 demonstrating that (1) the aggregate amount of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers on the Closing Date, (2) after giving effect to the initial Advances hereunder, Borrowers shall have Undrawn Availability of at least Two Hundred and Fifty Million and 00/100 Dollars($250,000,000.00), and (3) the Average Undrawn Availability as of the Closing Date after giving effect to the initial Advances hereunder;
(h) The Agent shall have received any and all Consents necessary to permit the effectuation of the transactions contemplated by this Agreement and the Other Documents; and, Agent shall have received such Consents and waivers of such third parties as might assert claims satisfactorily completed its due diligence with respect to the Collateral, as Agent and its counsel shall deem necessary;
(i) The Agent shall have received a copy of the Projections in form and substance satisfactory to the Agent;
(j) Lien searches for each of the Loan Parties in acceptable scope and with results acceptable to the Agent; 222233776
(k) The Agent shall have received (i) evidence acceptable to the Agent that all existing Indebtedness that is to be paid by initial Advances hereunder will be paid in full, and (ii) evidence satisfactory to Agent that all necessary termination statements, satisfaction documents and any other applicable releases in connection with any such existing Indebtedness and all other Liens with respect to Loan Parties that are not Permitted Encumbrances have been filed or arrangements satisfactory to Agent have been made for such filing;this Agreement.
Appears in 1 contract
Conditions to Initial Advances. The agreement initial advances of Lenders to make proceeds of the initial Advances requested to LOANS shall be made on the Closing Date is subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with the making satisfaction of such Advances, each of the following conditions precedent:
(a) a. All of the LOAN DOCUMENTS shall be executed and delivered by the BORROWER, the GUARANTORS, and all other signatories, to the LENDER;
b. The Agent LENDER shall have received and, in its sole discretion, approved:
(i) a certificate of each of the Loan Parties signed by an Authorized Officer, dated the Closing Date stating that the Loan Parties are in compliance with each of their representations, warranties, covenants and conditions hereunder and no Event of Default or Default exists and no Material Adverse Change has occurred since the date of the last audited financial statements of ATI and its Subsidiaries delivered to the Agent;
(b) The Agent shall have received a certificate dated the Closing Date and signed by the Secretary, an Assistant Secretary, Officer or Manager, as the case may be, of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with 222233776 this Agreement and the Other Documents; (b) the names of the Authorized Officers authorized to sign this Agreement and the Other Documents and their true signatures; and (c) copies of its Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;
(c) The Agent shall have received good standing certificates, or similar certifications, for each Loan Party dated not more than sixty (60) days prior to the Closing Date, issued by the Secretary of State or other appropriate official of each Loan Party's jurisdiction of incorporation or formation, as the case may be, and each jurisdiction where the conduct of each entity's business activities or the ownership of each such entity's properties necessitates qualification;
(d) The Agent shall have received this Agreement and each of the Other Documents signed by an Authorized Officer;
(e) The Agent shall have received written opinion(s) of counsel for the Loan Parties, dated the Closing Date for the benefit of the Agent and each Lender and in form and substance satisfactory to the Agent and its counsel;
(f) The Agent shall have receivedLENDER, in form and substance satisfactory to Agent, (i) evidence that insurance required to be maintained under this Agreement is in full force and effect, (ii) insurance certificates issued given by the Loan Parties' insurance broker containing such information regarding secretary or other authorized officer of the Loan Parties' casualty and liability insurance policies as Agent shall request and naming Agent as an additional insured and lenders loss payee as provided hereinBORROWER, accompanied by certified copies of the Articles of Incorporation of the BORROWER, with all amendments thereto, the By-Laws of the BORROWER, with all amendments thereto, and (iii) lender loss payable endorsements issued by the Loan Parties' insurer naming Agent as lenders loss payee to the extent provided herein;
(g) The Agent shall have received from the Borrowers a Borrowing Base Certificate as of August 31. 2019 demonstrating that (1) the aggregate amount of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers on the Closing Date, (2) after giving effect to the initial Advances hereunder, Borrowers shall have Undrawn Availability of at least Two Hundred and Fifty Million and 00/100 Dollars($250,000,000.00), and (3) the Average Undrawn Availability as resolutions of the Closing Date after giving effect to the initial Advances hereunder;
(h) The Agent shall have received any and BORROWER authorizing all Consents necessary to permit the effectuation of the transactions contemplated by this Agreement AGREEMENT and the Other Documents; and, Agent shall have received such Consents and waivers of such third parties as might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessaryother LOAN DOCUMENTS;
(iii) The Agent shall have received a copy such lien search reports and other evidence of the Projections validity and priority of the security interests granted to the LENDER under the LOAN DOCUMENTS as the LENDER deems necessary or appropriate;
(iii) true and complete copies of insurance policies or certificates evidencing that all insurance coverages required under the LOAN DOCUMENTS are in full force and effect as of CLOSING;
(iv) certificates in form and substance satisfactory to the AgentLENDER, given by the secretary or other authorized officer of each of the GUARANTORS, accompanied by certified copies of the Articles of Incorporation of each GUARANTOR, with all amendments thereto and the By-Laws of each GUARANTOR, with all amendments thereto, and resolutions of each of the GUARANTORS authorizing all of the transactions contemplated by the GUARANTY AGREEMENT;
(jv) Lien searches for each true and complete copies of the Loan Parties ten (10) largest (on the basis of unpaid contract value) contracts of the BORROWER with the United States government or any agency or department thereof;
(vi) letter from the BORROWER'S and the GUARANTORS' legal counsel in acceptable scope form and with results substance acceptable to the Agent; 222233776LENDER and the LENDER'S counsel;
(k) The Agent shall have received (i) evidence acceptable c. As of CLOSING, all legal matters incidental to the Agent that all existing Indebtedness that is providing of the LOANS shall be satisfactory to the LENDER'S counsel;
d. All expenses to be paid by initial Advances hereunder will be paid in full, the BORROWER pursuant to this AGREEMENT and (ii) evidence satisfactory to Agent that all necessary termination statements, satisfaction documents and any other applicable releases in connection with any such existing Indebtedness and all other Liens with respect to Loan Parties that are not Permitted Encumbrances incurred as of CLOSING shall have been filed or arrangements satisfactory to Agent have been made for such filing;paid by the BORROWER; and
e. The LENDER shall be satisfied that no MATERIAL ADVERSE EVENT has occurred and is continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Ea Engineering Science & Technology Inc)
Conditions to Initial Advances. The agreement of Lenders to make the initial Advances requested to be made on the Closing Date is subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with the making of such Advances, of the following conditions precedent:
(a) The Agent shall have received a certificate confirmed the receipt of each all required court approvals for the execution and performance of the Loan Parties signed by an Authorized Officer, dated Debtors under the Closing Date stating that the Loan Parties are in compliance with each of their representations, warranties, covenants and conditions hereunder and no Event of Default or Default exists and no Material Adverse Change has occurred since the date of the last audited financial statements of ATI and its Subsidiaries delivered to the AgentOther Documents;
(b) The Agent shall have received a certificate dated the Closing Date and signed by the Secretary, an Assistant Secretary, Officer or Manager, as the case may be, of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with 222233776 this Agreement and the Other Documents; (b) the names of the Authorized Officers authorized to sign this Agreement and the Other Documents and their true signatures; and (c) copies of its Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do businessInterim Order;
(c) The Agent shall have received good standing certificates, or similar certifications, for each Loan Party dated not more than sixty (60) days prior to the Closing Date, issued by the Secretary of State or other appropriate official of each Loan Party's jurisdiction of incorporation or formation, as the case may be, and each jurisdiction where the conduct of each entity's business activities or the ownership of each such entity's properties necessitates qualification;
(d) The Agent shall have received this Agreement and each of the Other Documents signed required by an Authorized Officer;
(e) The Agent shall have received written opinion(s) of counsel for the Loan Partiesto be delivered in connection herewith, dated the Closing Date for the benefit of the Agent and in each Lender and in form and substance satisfactory to the Agent and its counsel;
(f) The Agent shall have receivedcase, in form and substance satisfactory acceptable to Agent, (i) evidence that insurance required to be maintained under this Agreement is in full force Agent and effect, (ii) insurance certificates issued by the Loan Parties' insurance broker containing such information regarding the Loan Parties' casualty and liability insurance policies as Agent shall request and naming Agent as an additional insured and lenders loss payee as provided herein, and (iii) lender loss payable endorsements issued by the Loan Parties' insurer naming Agent as lenders loss payee to the extent provided hereinLenders;
(gd) The Agent shall have received from the Borrowers a Borrowing Base Certificate as of August 31. 2019 demonstrating that (1) the Term DIP Loan Agreement, which shall, among other things, provide for debtor in possession financing provided by Highbridge Capital Management, LLC, in an aggregate amount not less than $70,000,000; provided that the form of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers on the Closing Date, (2) after giving effect Term DIP Loan Agreement attached to the initial Advances hereunder, Borrowers Restructuring Support Agreement shall have Undrawn Availability of at least Two Hundred and Fifty Million and 00/100 Dollars($250,000,000.00), and (3) the Average Undrawn Availability as of the Closing Date after giving effect to the initial Advances hereunder;
(h) The Agent shall have received any and all Consents necessary to permit the effectuation of the transactions contemplated by this Agreement and the Other Documents; and, Agent shall have received such Consents and waivers of such third parties as might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessary;
(i) The Agent shall have received a copy of the Projections in form and substance satisfactory be deemed acceptable to the Agent;
(je) Lien searches for each of the Loan Parties in acceptable scope and with results acceptable to the Agent; 222233776
(k) The Agent shall have received the First Amendment to Intercreditor Agreement, dated as of the Closing Date, by and among the Agent, the Term DIP Loan Agent and the Loan Parties;
(if) evidence Substantially concurrently with the initial funding under the Term DIP Loan Agreement, Agent shall have received reimbursement in full in cash of the professional fees, costs and expenses of Agent and the Lenders in accordance with the terms of the Interim Order;
(g) Agent shall have received the initial Budget, setting forth projected cash flows, together with detailed information as to projected disbursements and receipts, including all updates and supplements thereto, to be in form and substance reasonably acceptable to the Agent that all existing Indebtedness that is and the Lenders to the extent material to the interests of the Lenders; and
(h) the Bankruptcy Court shall have entered a customary “cash management order” adopting and implementing cash management arrangements for the Debtors, which shall be paid by initial Advances hereunder will be paid in full, form and (ii) evidence substance and on terms and conditions satisfactory to Agent that all necessary termination statements, satisfaction documents in its sole and any other applicable releases in connection with absolute discretion (any such existing Indebtedness and all other Liens with respect to Loan Parties that are not Permitted Encumbrances have been filed or arrangements satisfactory to Agent have been made for such filing;order, the “Cash Management Order”).
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Invacare Corp)
Conditions to Initial Advances. The agreement of Lenders to make the initial Advances requested to be made on the Closing Date is subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with the making of such Advances, of the following conditions precedent:
(a) The Agent shall have received a certificate of each of the Loan Parties signed by an Authorized Officer, dated the Closing Date stating that the Loan Parties are in compliance with each of their representations, warranties, covenants and conditions hereunder and no Event of Default or Default exists and no Material Adverse Change has occurred since the date of the last audited financial statements of ATI and its Subsidiaries delivered to the Agent;
(b) The Agent shall have received a certificate dated the Closing Date and signed by the Secretary, an Assistant Secretary, Officer or Manager, as the case may be, of each of the Loan Parties, certifying as appropriate as to: (a) all action taken by each Loan Party in connection with 222233776 this Agreement and the Other Documents; (b) the names of the Authorized Officers authorized to sign this Agreement and the Other Documents and their true signatures; and (c) copies of its Organizational Documents as in effect on the Closing Date certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of each Loan Party in each state where organized or qualified to do business;; 268323208
(c) The Agent shall have received good standing certificates, or similar certifications, for each Loan Party dated not more than sixty (60) days prior to the Closing Date, issued by the Secretary of State or other appropriate official of each Loan Party's jurisdiction of incorporation or formation, as the case may be, and each jurisdiction where the conduct of each entity's business activities or the ownership of each such entity's properties necessitates qualification;
(d) The Agent shall have received this Agreement and each of the Other Documents signed by an Authorized Officer;
(e) The Agent shall have received written opinion(s) of counsel for the Loan Parties, dated the Closing Date for the benefit of the Agent and each Lender and in form and substance satisfactory to the Agent and its counsel;
(f) The Agent shall have received, in form and substance satisfactory to Agent, (i) evidence that insurance required to be maintained under this Agreement is in full force and effect, (ii) insurance certificates issued by the Loan Parties' insurance broker containing such information regarding the Loan Parties' casualty and liability insurance policies as Agent shall request and naming Agent as an additional insured and lenders loss payee as provided herein, and (iii) lender loss payable endorsements issued by the Loan Parties' insurer naming Agent as lenders loss payee to the extent provided herein;
(g) The Agent shall have received from the Borrowers a Borrowing Base Certificate as of August 31. 2019 demonstrating that (1) the aggregate amount of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers Xxxxxxxxx on the Closing Date, (2) after giving effect to the initial Advances hereunder, Borrowers shall have Undrawn Availability of at least Two Hundred and Fifty Million and 00/100 Dollars($250,000,000.00), and (3) the Average Undrawn Availability as of the Closing Date after giving effect to the initial Advances hereunder;
(h) The Agent shall have received any and all Consents necessary to permit the effectuation of the transactions contemplated by this Agreement and the Other Documents; and, Agent shall have received such Consents and waivers of such third parties as might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessary;
(i) The Agent shall have received a copy of the Projections in form and substance satisfactory to the Agent;
(j) Lien searches for each of the Loan Parties in acceptable scope and with results acceptable to the Agent; 222233776;
(k) The Agent shall have received (i) evidence acceptable to the Agent that all existing Indebtedness that is to be paid by initial Advances hereunder will be paid in full, and (ii) evidence satisfactory to Agent that all necessary termination statements, satisfaction documents and any other applicable releases in connection with any such existing Indebtedness and all other Liens with respect to Loan Parties that are not Permitted Encumbrances have been filed or arrangements satisfactory to Agent have been made for such filing;
(l) The Agent shall have received evidence satisfactory to the Agent of the amount and nature of all contingent liabilities of the Loan Parties including tax, ERISA, employee retirement benefit and other contingent liabilities; 268323208
(m) The Agent shall have received evidence satisfactory to the Agent (i) no litigation, investigation or proceeding before or by any arbitrator or Governmental Body shall be continuing or threatened against any Loan Party or against the officers or directors of any Loan Party (A) in connection with this Agreement or the Other Documents or any of the transactions contemplated thereby and which, in the reasonable opinion of Agent, is deemed material or (B) which could, in the reasonable opinion of Agent, constitute a Material Adverse Change; and (ii) no injunction, writ, restraining order or other order of any nature materially adverse to any Loan Party or the conduct of its business or inconsistent with the due consummation of the transactions contemplated by this Agreement shall have been issued by any Governmental Body;
(n) Each document (including any Uniform Commercial Code financing statement) required by this Agreement, any related agreement or under law or reasonably requested by Agent to be filed, registered or recorded in order to create, in favor of Agent, a perfected security interest in or lien upon the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation and satisfactory evidence of the payment of any necessary fee, tax or expense relating thereto;
(o) The Agent shall have received Lien Waiver Agreements in form and substance satisfactory to the Agent (or the Agent shall have implemented appropriate rent reserves as determined by the Agent in its Permitted Discretion), with respect to all locations or places at which Inventory and books and records are located as set forth on Schedule 4.4 hereto other than those locations of the Loan Parties identified on Schedule 4.4 at which less than Five Hundred Thousand and 00/100 Dollars ($500,000.00) of Collateral is located;
(p) The Agent shall have completed a Collateral examination and received an Inventory appraisal, the results of which shall be satisfactory in form and substance to Lenders;
(q) The Agent shall have received all fees payable to Agent and Lenders on or prior to the Closing Date hereunder, including pursuant to Article III hereof;
(i) Since December 31, 2018 there shall not have occurred any event, condition or state of facts which could reasonably be expected to result in a Material Adverse Change and (ii) no representations made or information supplied to Agent or Lenders shall have been proven to be inaccurate or misleading in any material respect;
(s) The Agent shall be reasonably satisfied that each Loan Party is in compliance with all pertinent federal, state, local or territorial regulations, including those with respect to the Federal Occupational Safety and Health Act, the Environmental Protection Act, ERISA and the Anti-Terrorism Laws;
(t) The Existing Credit Agreement shall have been amended and restated at closing and all outstanding obligations thereunder shall be deemed to be Obligations hereunder, and such Obligations shall be allocated to each Lender on the Closing Date in accordance with such Xxxxxx's Revolving Commitment Percentage and/or Term Loan Commitment Percentage, as applicable; and the Agent shall have paid all outstanding amounts owed to any lender under the Existing Credit Agreement who is not a Lender under this Agreement; and
(u) All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to Agent and its counsel. 268323208
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Ati Inc)
