Conditions to Initial Closing. The obligation of each Lender to make the initial Loans, of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be subject to the receipt by Administrative Agent of each agreement, document and instrument set forth on the Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion: (a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter; (b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect; (c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents; (d) Mxxxxxx Lxxxx shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to Mxxxxxx Lxxxx) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations; (e) Administrative Agent and the Lenders shall have received and approved all requested financial statements and projections; (f) intentionally omitted; (g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance; (h) Intentionally omitted; (i) Mxxxxxx Lxxxx shall be satisfied that there has been no material adverse change in the capital markets which could impair Mxxxxxx Xxxxx’x ability to successfully syndicate this loan and letter of credit facility; (j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effect, and final and non-appealable; (k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure; (l) Intentionally omitted; (m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and (n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Collegiate Pacific Inc), Credit Agreement (Collegiate Pacific Inc)
Conditions to Initial Closing. The obligation of each Lender to make an Advance on the initial Loans, Closing Date is subject to the satisfaction of the conditions set forth in Section 3.02 and the following additional conditions:
(a) receipt by the Administrative Agent from each of the parties hereto of a duly executed counterpart of this Agreement signed by such party;
(b) if requested by any Lender, receipt by the Administrative Agent of a duly executed Note for the account of each such Lender, complying with the provisions of Section 2.04;
(c) receipt by the Administrative Agent of an opinion of counsel to issue any Support Agreements the Loan Parties, dated as of the Closing Date (or in the case of an opinion delivered pursuant to Section 5.28 hereof such later date as specified by the Administrative Agent) in a form satisfactory to Administrative Agent and covering such matters set forth in Exhibit F hereto and such additional matters relating to the transactions contemplated hereby as the Administrative Agent may reasonably request;
(d) receipt by the Administrative Agent of a certificate (the “Closing Certificate”), dated the Closing Date, substantially in the form of Exhibit G hereto, signed by a chief financial officer or other authorized officer of each Loan Party, to the effect that, to his knowledge, (i) no Default has occurred and is continuing on the Closing Date and (ii) the representations and warranties of any LC Issuer to issue any Lender Letter the Loan Parties contained in Article IV are true on and as of Credit on the Closing Date shall be subject to the Date;
(e) receipt by the Administrative Agent of all documents which the Administrative Agent, the Multicurrency Agent or any Lender may reasonably request relating to the existence of each agreementLoan Party, document the authority for and instrument set forth on the Closing Checklistvalidity of this Agreement, each the Notes and the other Loan Documents, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent, including a certificate of incumbency of each Loan Party (the “Officer’s Certificate”), signed by the Secretary, an Assistant Secretary, a member, manager, partner, trustee or other authorized representative of the respective Loan Party, substantially in the form of Exhibit H hereto, certifying as to the names, true signatures and incumbency of the officer or officers of the respective Loan Party, authorized to execute and deliver the Loan Documents, and certified copies of the following items: (i) the Loan Party’s Organizational Documents; (ii) the Loan Party’s Operating Documents; (iii) if applicable, a certificate of the Secretary of State of such Loan Party’s state of organization as to the good standing or existence of such Loan Party, and (iv) the Organizational Action, if any, taken by the board of directors of the Loan Party or the members, managers, trustees, partners or other applicable Persons authorizing the Loan Party’s execution, delivery and performance of this Agreement, the Notes and the other Loan Documents to which the Loan Party is a party;
(f) completion of due diligence to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents;
(d) Mxxxxxx Lxxxx shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to Mxxxxxx Lxxxx) of the Borrower and its Subsidiaries, including but not limited to review of the Investment Policies, risk management procedures, accounting policies, systems integrity, compliance, management and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent organizational structure and the Lenders shall have received loan and approved all requested financial statements investment portfolio of the Borrower and projections;
(f) intentionally omittedits Subsidiaries;
(g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility Collateral Documents shall have been consummated in accordance with duly executed by the applicable Law Loan Parties and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) Mxxxxxx Lxxxx shall be satisfied that there has been no material adverse change in the capital markets which could impair Mxxxxxx Xxxxx’x ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith each such document shall have been obtained delivered to the Administrative Agent and each of the Collateral Documents and Custodial Agreement amended thereby, shall be in full force and effecteffect and each document (including each UCC financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the benefit of the Secured Parties, upon filing, recording or possession by the Administrative Agent, as the case may be, a valid, legal and final perfected first-priority security interest in and non-appealablelien on the Collateral described in the Collateral Documents, to the extent not previously received and/or filed, shall have been delivered to the Administrative Agent; Borrower shall also deliver or cause to be delivered, to the extent not previously delivered, the certificates (with undated stock powers executed in blank) for all shares of stock or other equity interests pledged to the Administrative Agent for the benefit of Lenders pursuant to the Pledge Agreement or such equity interests shall be held by the Collateral Custodian under the Custodial Agreement for the benefit of the Administrative Agent and the Secured Parties;
(kh) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Administrative Agent shall have received the satisfactory results of a search of the review UCC filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) in which the Loan Parties are organized, the chief executive office of each such Person is located, any offices of such persons in which records have been kept relating to Collateral described in the Collateral Documents and the other jurisdictions in which UCC filings (or equivalent filings) are to be made pursuant to the preceding paragraph, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens other than Permitted Encumbrances indicated in any such financing statement (or similar document) have been released or subordinated to the satisfaction of Administrative Agent;
(i) receipt by the Administrative Agent of a third party consultant engaged Borrowing Base Certification Report, dated as of the date of the initial Notice of Borrowing and satisfactory in all respects to the Administrative Agent;
(j) the Borrower shall have paid all fees required to be paid by it on the Closing Date, including all fees required hereunder and under the Joint Lead Arranger’s Letter Agreement, and shall have reimbursed the Administrative Agent to review and the adequacy Multicurrency Agent for all fees, costs and expenses of Borrowers’ closing the transactions contemplated hereunder and its Subsidiaries’ respective insurance coverageunder the other Loan Documents, including the reasonable legal, audit and other document preparation costs incurred by the Administrative Agent and the Multicurrency Agent; and
(nk) receipt by Agent of such other documentsdocuments or items as the Administrative Agent, instruments and/or agreements as Agent the Multicurrency Agent, the Lenders or their counsel may reasonably request. For purposes of determining compliance with the conditions specified in this Section 3.01, the Multicurrency Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from the Multicurrency Agent or such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Triangle Capital CORP), Credit Agreement (Triangle Capital CORP)
Conditions to Initial Closing. The obligation of each Lender to make an Advance on the initial Loans, Closing Date is subject to the satisfaction of the conditions set forth in Section 3.02 and the following additional conditions:
(a) receipt by the Administrative Agent from each of the parties hereto of a duly executed counterpart of this Agreement signed by such party;
(b) if requested by any Lender, receipt by the Administrative Agent of a duly executed Revolver Note for the account of each such Lender, complying with the provisions of Section 2.04;
(c) receipt by the Administrative Agent of an opinion of counsel to issue any Support Agreements the Loan Parties, dated as of the Closing Date (or in the case of an opinion delivered pursuant to Section 5.28 hereof such later date as specified by the Administrative Agent) in a form satisfactory to Administrative Agent and covering such matters set forth in Exhibit F hereto and such additional matters relating to the transactions contemplated hereby as the Administrative Agent may reasonably request;
(d) receipt by the Administrative Agent of a certificate (the “Closing Certificate”), dated the Closing Date, substantially in the form of Exhibit G hereto, signed by a chief financial officer or other authorized officer of each Loan Party, to the effect that, to his knowledge, (i) no Default has occurred and is continuing on the Closing Date and (ii) the representations and warranties of any LC Issuer to issue any Lender Letter the Loan Parties contained in Article IV are true on and as of Credit on the Closing Date shall be subject to the Date;
(e) receipt by the Administrative Agent of all documents which the Administrative Agent or any Lender may reasonably request relating to the existence of each agreementLoan Party, document the authority for and instrument set forth on the Closing Checklistvalidity of this Agreement, each the Notes and the other Loan Documents, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent, including a certificate of incumbency of each Loan Party (the “Officer’s Certificate”), signed by the Secretary, an Assistant Secretary, a member, manager, partner, trustee or other authorized representative of the respective Loan Party, substantially in the form of Exhibit H hereto, certifying as to the names, true signatures and incumbency of the officer or officers of the respective Loan Party, authorized to execute and deliver the Loan Documents, and certified copies of the following items: (i) the Loan Party’s Organizational Documents; (ii) the Loan Party’s Operating Documents; (iii) if applicable, a certificate of the Secretary of State of such Loan Party’s state of organization as to the good standing or existence of such Loan Party, and (iv) the Organizational Action, if any, taken by the board of directors of the Loan Party or the members, managers, trustees, partners or other applicable Persons authorizing the Loan Party’s execution, delivery and performance of this Agreement, the Notes and the other Loan Documents to which the Loan Party is a party;
(f) completion of due diligence to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents;
(d) Mxxxxxx Lxxxx shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to Mxxxxxx Lxxxx) of the Borrower and its Subsidiaries, including but not limited to review of the Investment Policies, risk management procedures, accounting policies, systems integrity, compliance, management and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent organizational structure and the Lenders shall have received loan and approved all requested financial statements investment portfolio of the Borrower and projections;
(f) intentionally omittedits Subsidiaries;
(g) the Omnibus Amendment No. 1 to Collateral Documents and Custodial Agreement in form and content satisfactory to the Administrative Agent, which amendment shall provide, among other things for all other transactions contemplated references to occur the Credit Agreement in connection with the closing of existing Collateral Documents to be deemed to refer to this loan Amended and letter of credit facility Restated Credit Agreement, shall have been consummated in accordance with duly executed by the applicable Law Loan Parties and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) Mxxxxxx Lxxxx shall be satisfied that there has been no material adverse change in the capital markets which could impair Mxxxxxx Xxxxx’x ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith such document shall have been obtained delivered to the Administrative Agent and such amendment, along with each of the Collateral Documents and Custodial Agreement amended thereby, shall be in full force and effecteffect and each document (including each UCC financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the benefit of the Secured Parties, upon filing, recording or possession by the Administrative Agent, as the case may be, a valid, legal and final perfected first-priority security interest in and non-appealablelien on the Collateral described in the Collateral Documents, to the extent not previously received and/or filed, shall have been delivered to the Administrative Agent; Borrower shall also deliver or cause to be delivered, to the extent not previously delivered, the certificates (with undated stock powers executed in blank) for all shares of stock or other equity interests pledged to the Administrative Agent for the benefit of Lenders pursuant to the Pledge Agreement or such equity interests shall be held by the Collateral Custodian under the Custodial Agreement for the benefit of the Administrative Agent and the Secured Parties;
(kh) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Administrative Agent shall have received the satisfactory results of a search of the review UCC filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) in which the Loan Parties are organized, the chief executive office of each such Person is located, any offices of such persons in which records have been kept relating to Collateral described in the Collateral Documents and the other jurisdictions in which UCC filings (or equivalent filings) are to be made pursuant to the preceding paragraph, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens other than Permitted Encumbrances indicated in any such financing statement (or similar document) have been released or subordinated to the satisfaction of Administrative Agent;
(i) receipt by the Administrative Agent of a third party consultant engaged Borrowing Base Certification Report, dated as of the date of the initial Notice of Borrowing and satisfactory in all respects to the Administrative Agent;
(j) the Borrower shall have paid all fees required to be paid by it on the Closing Date, including all fees required hereunder and under the Administrative Agent’s Letter Agreement to be paid as of such date, and shall have reimbursed the Administrative Agent to review for all fees, costs and expenses of closing the adequacy of Borrowers’ transactions contemplated hereunder and its Subsidiaries’ respective insurance coverageunder the other Loan Documents, including the reasonable legal, audit and other document preparation costs incurred by the Administrative Agent; and
(nk) receipt by Agent of such other documentsdocuments or items as the Administrative Agent, instruments and/or agreements as Agent the Lenders or their counsel may reasonably request. For purposes of determining compliance with the conditions specified in this Section 3.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Initial Closing. The In addition to the requirements of the conditions set forth in Section 3.1 above, the obligation of each Lender the Purchaser to make purchase the Notes at the initial Loans, of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be is subject to the receipt by Administrative Agent fulfillment, to the Purchaser's satisfaction, at or concurrently with the initial Closing, of each agreement, document and instrument the conditions set forth on the Closing Checklist, each in form Section 3.3 below and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of all of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretionconditions:
(a) Copies of the payment Agreement of all feesLimited Partnership of the Company and of the charter and bylaws of the general partner of the Company, expenses and other amounts due and payable under each Financing Documentas in effect on the Closing Date, including, without limitation, certified by the Administrative Agent Fee Letter;Secretary of the general partner of the Company
(b) Resolutions of the satisfaction Company authorizing the execution and delivery of Agent as this Agreement, the Security Agreement and the other Purchase Documents to which it is a party and the absenceissuance and sale of the Notes, since March 31, 2006, certified by the Secretary of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effectthe general partner of the Company;
(c) the receipt Copies of the initial Borrowing Base Certificate, prepared Memorandum of Association and Bylaws of the Guarantor as of in effect on the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to certified by the initial funding of Loans on the Closing Date and the consummation Secretary of the transactions contemplated by the Operative DocumentsGuarantor;
(d) Mxxxxxx Lxxxx shall be satisfied with Resolutions of the results Board of its legal Directors of the Guarantor authorizing the execution and business due diligencedelivery of this Agreement, whichthe Guarantees and the other Purchase Documents to which it is a party, in certified by the case Secretary of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to Mxxxxxx Lxxxx) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operationsthe Guarantor;
(e) Administrative Agent An original counterpart of this Agreement and the Lenders shall have received Security Agreement, each duly executed by the parties thereto and approved all requested financial statements and projectionsdated as of the initial Closing Date;
(f) intentionally omittedOfficial evidence that the Company has been duly formed and is an existing limited partnership in good standing under the laws of the State of California and that the Guarantor has been duly incorporated and is an existing corporation under the laws of the United Kingdom;
(g) all other transactions contemplated UCC-1 financing statements in a form approved by the Purchaser to occur in connection be filed with the closing Secretary of this loan and letter State of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substanceCalifornia;
(h) Intentionally omittedthe deposit by the Company of $750,000 in a money market account with IBJ Whitehall Bank & Trust Company, which account shall be in the name of the Company but subject to the exclusive control of the Purchaser;
(i) Mxxxxxx Lxxxx shall be satisfied that there has been no material adverse change insurance certificate or certificates in respect of the capital markets which could impair Mxxxxxx Xxxxx’x ability to successfully syndicate this loan Containers naming the Noteholders as loss payees and letter of credit facility;additional insureds; and
(j) a list of all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effect, and final and non-appealable;
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably requestCompany's Containers.
Appears in 1 contract
Samples: Note Purchase Agreement (Cronos Global Income Fund Xvi Lp)
Conditions to Initial Closing. The obligation of each Lender to make the initial Loans, of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date It shall be subject a condition to the receipt by Administrative Agent of each agreement, document and instrument set forth on the Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by this Agreement at the Operative DocumentsInitial Closing that the Company shall have, concurrently with the execution of this Agreement by the Investors, executed and delivered:
(a) A copy of an agreement of The Travelers Insurance Company ("Travelers") with the Company limiting the amount of warrants to be issued to Travelers by the Company pursuant to the Note Purchase Agreement, entered into as of August 21, 2001 by the Company and Travelers, to seventy percent (70%) of the relevant indebtedness issued under such agreement;
(b) to the Collateral Agent (as such term is defined therein) the Security Agreement (as defined in Section 4(a)) in the form attached to this Agreement as Exhibit C, and two completed originals of a UCC Form 1 suitable for filing and the applicable federal assignment forms executed by the Company sufficient for the Collateral Agent to perfect the security interests created therein;
(c) the Registration Rights Agreement, dated as of November 27, 2001, by and among the Company and the Investors (the "Registration Rights Agreement") in the form attached to this Agreement as Exhibit D;
(d) Mxxxxxx Lxxxx shall the Warrants, each such Warrant to be satisfied with the results of its legal and business due diligence, which, in the case amount required to be issued to each Investor on the date of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reportsthe Initial Closing pursuant to Section 1(d) and other documentation (including, without limitation, title and survey documentation) with respect in the form attached to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to Mxxxxxx Lxxxx) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations;this Agreement as Exhibit B; and
(e) Administrative Agent a legal opinion of Company's counsel to the effect that the entering into of this Agreement by the Company has been duly authorized by all necessary corporate action of the Company and that the Lenders shall have received execution, delivery and approved all requested financial statements and projections;
(f) intentionally omitted;
(g) all other transactions contemplated to occur in connection performance of this Agreement by the Company will not violate or conflict with the closing Amended and Restated Articles of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) Mxxxxxx Lxxxx shall be satisfied that there has been no material adverse change in the capital markets which could impair Mxxxxxx Xxxxx’x ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effect, and final and non-appealable;
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (Incorporation or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results Bylaws of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably requestCompany.
Appears in 1 contract
Conditions to Initial Closing. The obligation of each Lender to make the initial Loans, of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date It shall be subject a condition to the receipt by Administrative Agent of each agreement, document and instrument set forth on the Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by this Agreement at the Operative DocumentsInitial Closing that the Company shall have, concurrently with the execution of this Agreement by the Investors, executed and delivered:
(a) a copy of an agreement between The Travelers Insurance Company ("Travelers") and the Company that requires Travelers to convert its Convertible Promissory Note, dated August 21, 2001, into Common Stock upon the Company entering into this Agreement;
(b) a copy of an agreement between SK Corporation ("SK") and the Company that requires SK to convert its Series A Convertible Debentures, dated September 18, 2001, into Common Stock upon the Company entering into this Agreement;
(c) a copy of a settlement agreement between Finova Group Inc. and the Company that contains terms satisfactory to the Investors;
(d) Mxxxxxx Lxxxx shall be satisfied a detailed plan regarding the restructuring of the Company's payables and outstanding debt, and copies of agreements between the Company and each of its creditors that requires each creditor to settle its claim with the results of its legal and business due diligence, which, in Company upon the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to Mxxxxxx Lxxxx) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operationsCompany entering into this Agreement;
(e) Administrative Agent and a detailed chart of the Lenders shall have received and approved all requested Company's financial statements and projectionstargets for the covenants in the New Notes, as set forth in Schedule 6(e) attached hereto;
(f) intentionally omittedto the Collateral Agent (as defined in the New Security Agreement), the New Security Agreement and two completed originals of a UCC Form 1 suitable for filing and the applicable federal assignment forms executed by the Company sufficient for the Collateral Agent to perfect the security interests created therein with the United States Patent and Trademark Office;
(g) all other transactions contemplated the Amended and Restated Notes, each such Amended and Restated Note to occur be in connection with the closing amount required to be issued to each Original Secured Party on the date of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory Initial Closing pursuant to Agent and the Lenders in form and substance;
Section 1(a); (h) Intentionally omittedthe New Notes, each such New Note to be in the amount required to be issued to each New Investor on the date of the Initial Closing pursuant to Section 2(d);
(i) Mxxxxxx Lxxxx shall the Warrants, each such Warrant to be satisfied that there has been no material adverse change in the capital markets which could impair Mxxxxxx Xxxxx’x ability amount required to successfully syndicate this loan and letter be issued to each Investor on the date of credit facilityeach Tranche Closing pursuant to Section 2(e);
(j) all governmental the Registration Rights Agreement, dated as of April 25, 2003, by and third party approvals necessary in connection with among the closing of this loan and letter of credit facility Company and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effect, and final and non-appealableInvestors (the "Registration Rights Agreement");
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capitalto the Investors a legal opinion from the Company's outside legal counsel, legal and organizational structuredated as of April 25, 2003, in the form attached to this Agreement as Exhibit F;
(l) Intentionally omittedto the Collateral Agent in immediately available funds the amount of $7,500 as payment of the Collateral Agent's fee and for legal fees incurred by the Collateral Agent in connection with the negotiation of this Agreement and the New Security Agreement;
(m) Agent shall have received copies to Xxxxxxxxxx & Xxxxx LLP in immediately available funds the amount of (or binders for) insurance policies (including without limitation casualty$105,000, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent constituting as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review date of this Agreement $15,000 in reimbursable fees and expenses regarding filings with the adequacy of Borrowers’ Patent and its Subsidiaries’ respective insurance coverageTrademark Office and UCC filings under the Original Secured Note Purchase Agreement, Bridge Financing Agreement, Original Security Agreement, Bridge Security Agreements and New Security Agreement and $90,000 in legal fees and expenses pursuant the this Agreement and the related transactions; and
(n) receipt a certificate to the Investors signed by Agent the Company's Chief Executive Officer, certifying that (i) each of such other documentsthe representations and warranties in Section 4 are true and correct on and as of the Initial Closing date, instruments and/or agreements as Agent may reasonably requestand (ii) eMagin's and Virtual Vision's board of directors have approved this Agreement and the related transactions.
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Conditions to Initial Closing. The obligation of each Lender to make an Advance on the initial Loans, Closing Date is subject to the satisfaction of the conditions set forth in Section 3.02 and the following additional conditions:
(a) receipt by the Administrative Agent from each of the parties hereto of a duly executed counterpart of this Agreement signed by such party;
(b) if requested by any Lender, receipt by the Administrative Agent of a duly executed Note for the account of each such Lender, complying with the provisions of Section 2.04;
(c) receipt by the Administrative Agent of an opinion of counsel to issue any Support Agreements the Loan Parties, dated as of the Closing Date (or in the case of an opinion delivered pursuant to Section 5.28 hereof such later date as specified by the Administrative Agent) in a form satisfactory to Administrative Agent and covering such matters set forth in Exhibit F hereto and such additional matters relating to the transactions contemplated hereby as the Administrative Agent may reasonably request;
(d) receipt by the Administrative Agent of a certificate (the “Closing Certificate”), dated the Closing Date, substantially in the form of Exhibit G hereto, signed by a chief financial officer or other authorized officer of each Loan Party, to the effect that, to his knowledge, (i) no Default has occurred and is continuing on the Closing Date and (ii) the representations and warranties of any LC Issuer to issue any Lender Letter the Loan Parties contained in Article IV are true on and as of Credit on the Closing Date shall be subject to the Date;
(e) receipt by the Administrative Agent of all documents which the Administrative Agent, the Multicurrency Agent or any Lender may reasonably request relating to the existence of each agreementLoan Party, document the authority for and instrument set forth on the Closing Checklistvalidity of this Agreement, each the Notes and the other Loan Documents, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent, including a certificate of incumbency of each Loan Party (the “Officer's Certificate”), signed by the Secretary, an Assistant Secretary, a member, manager, partner, trustee or other authorized representative of the respective Loan Party, substantially in the form of Exhibit H hereto, certifying as to the names, true signatures and incumbency of the officer or officers of the respective Loan Party, authorized to execute and deliver the Loan Documents, and certified copies of the following items: (i) the Loan Party's Organizational Documents; (ii) the Loan Party's Operating Documents; (iii) if applicable, a certificate of the Secretary of State of such Loan Party's state of organization as to the good standing or existence of such Loan Party, and (iv) the Organizational Action, if any, taken by the board of directors of the Loan Party or the members, managers, trustees, partners or other applicable Persons authorizing the Loan Party's execution, delivery and performance of this Agreement, the Notes and the other Loan Documents to which the Loan Party is a party;
(f) completion of due diligence to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents;
(d) Mxxxxxx Lxxxx shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to Mxxxxxx Lxxxx) of the Borrower and its Subsidiaries, including but not limited to review of the Investment Policies, risk management procedures, accounting policies, systems integrity, compliance, management and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent organizational structure and the Lenders shall have received loan and approved all requested financial statements investment portfolio of the Borrower and projections;
(f) intentionally omittedits Subsidiaries;
(g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility Collateral Documents shall have been consummated in accordance with duly executed by the applicable Law Loan Parties and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) Mxxxxxx Lxxxx shall be satisfied that there has been no material adverse change in the capital markets which could impair Mxxxxxx Xxxxx’x ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith each such document shall have been obtained delivered to the Administrative Agent and each of the Collateral Documents and Custodial Agreement amended thereby, shall be in full force and effecteffect and each document (including each UCC financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the benefit of the Secured Parties, upon filing, recording or possession by the Administrative Agent, as the case may be, a valid, legal and final perfected first-priority security interest in and non-appealablelien on the Collateral described in the Collateral Documents, to the extent not previously received and/or filed, shall have been delivered to the Administrative Agent; Borrower shall also deliver or cause to be delivered, to the extent not previously delivered, the certificates (with undated stock powers executed in blank) for all shares of stock or other equity interests pledged to the Administrative Agent for the benefit of Lenders pursuant to the Pledge Agreement or such equity interests shall be held by the Collateral Custodian under the Custodial Agreement for the benefit of the Administrative Agent and the Secured Parties;
(kh) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Administrative Agent shall have received the satisfactory results of a search of the review UCC filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) in which the Loan Parties are organized, the chief executive office of each such Person is located, any offices of such persons in which records have been kept relating to Collateral described in the Collateral Documents and the other jurisdictions in which UCC filings (or equivalent filings) are to be made pursuant to the preceding paragraph, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens other than Permitted Encumbrances indicated in any such financing statement (or similar document) have been released or subordinated to the satisfaction of Administrative Agent;
(i) receipt by the Administrative Agent of a third party consultant engaged Borrowing Base Certification Report, dated as of the date of the initial Notice of Borrowing and satisfactory in all respects to the Administrative Agent;
(j) the Borrower shall have paid all fees required to be paid by it on the Closing Date, including all fees required hereunder and under the Administrative Agent's Letter Agreement or any letter agreement with the Multicurrency Agent to review be paid as of such date, and shall have reimbursed the adequacy Administrative Agent and the Multicurrency Agent for all fees, costs and expenses of Borrowers’ closing the transactions contemplated hereunder and its Subsidiaries’ respective insurance coverageunder the other Loan Documents, including the reasonable legal, audit and other document preparation costs incurred by the Administrative Agent and the Multicurrency Agent; and
(nk) receipt by Agent of such other documentsdocuments or items as the Administrative Agent, instruments and/or agreements as Agent the Multicurrency Agent, the Lenders or their counsel may reasonably request. For purposes of determining compliance with the conditions specified in this Section 3.01, the Multicurrency Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from the Multicurrency Agent or such Lender prior to the proposed Closing Date specifying its objection thereto.
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