Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by Xxxxxx: (a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F); (b) Lender shall have received evidence that all of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans; (c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion; (d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion; (e) the insurance policies provided for in Section 3.16 shall be in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour of Xxxxxx as required under such Section; (f) as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales); (g) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility; (h) Xxxxxx shall have received opinions of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each Loan Document in form and substance satisfactory to Lender; (i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable); (j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties; (k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents; (l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto; (m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations; (n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party; (o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing; (p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and (q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 2 contracts
Samples: Loan Agreement (Dirtt Environmental Solutions LTD), Loan Agreement (Dirtt Environmental Solutions LTD)
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence that all of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) the insurance policies provided for in Section 3.16 shall be are in full force and effecteffect and acceptable to Lender, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fc) as of the Closing Date, Net Borrowing Availability for all Borrowers combined shall be not less than $8,000,000 1,200,000 after giving effect to the initial Revolving Credit Advances Advance and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(gd) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions an opinion of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) Borrowers with respect to each the Loan Document Documents in form and substance satisfactory to Lender;
(ie) Lender (All intercompany loans and where applicable, Xxxxxx’s counsel) shall have completed and advances due from Borrowers to Parent or any Affiliate will be satisfied with subordinated to the results of all business, environmental and legal due diligence (including review with results Obligations on terms satisfactory to Lender of Borrower’s union contracts, if applicable)Lender;
(jf) On a consolidated basis, Borrowers, Parent and all Affiliates shall have a minimum of $6,000,000 of cash on hand or available at closing;
(g) Implementation of a satisfactory coding system for all invoices generated by Borrowers;
(h) The corporate structure, capital structure, other debt instruments, material contracts and governing documents of Borrowers and their Affiliates must be acceptable to Lender;
(i) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the obtained satisfactory background and reference checks on BorrowerBorrowers, senior management of Borrowers any guarantors and the all other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been metParties; and
(qj) the Lender Any necessary or appropriate waivers and consents of governmental entities or third parties shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Documentbeen obtained.
Appears in 2 contracts
Samples: Loan and Security Agreement (Harmony Holdings Inc), Loan and Security Agreement (Intelefilm Corp)
Conditions to the Initial Loans. Lender (i) The structure and all terms of, and the documentation for, the Transaction shall not be obligated reasonably satisfactory to make any the Agent and the Required Lenders. All conditions precedent to the consummation of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by Xxxxxx:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all Tender Offer as set forth in the Schedule documentation relating thereto shall have been satisfied, and not waived except with the consent of Documents the Agent and the Required Lenders, to the reasonable satisfaction of the Agent and the Required Lenders. The Tender Offer shall have been consummated in all material respects in accordance with such documentation and all applicable laws.
(Schedule Fii) Holdings shall have received gross cash proceeds from the Equity Issuance of at least $20 million. All terms and conditions (and the documentation) in connection with the Equity Issuance shall be reasonably satisfactory to the Agent and the Required Lenders. Management of the Acquired Business shall have rolled over its equity in an amount and on terms reasonably satisfactory to the Agent and the Required Lenders.
(iii) Holdings shall have received gross cash proceeds from the issuance of the Subordinated Notes of at least $20 million, and Holdings shall have either loaned such proceeds to the Borrower or contributed them as equity to the Borrower. Interest on the Subordinated Notes shall be payable in kind for a period of time acceptable to the Agent and the Required Lenders (except that, unless a default or event of default exists under the Senior Bank Financing (as defined below);
, (a) cash interest may be paid in an amount to allow the subordinated lender to pay cash taxes in respect of the subordinated notes and (b) Lender cash interest may be paid if the senior leverage ratio of the Borrower and its Subsidiaries is less than 2.5 times). All terms and conditions (and the documentation entered into in connection with the issuance) of the Subordinated Notes (including, without limitation, interest rate, mandatory redemptions, covenants, defaults, remedies, subordination provisions and other terms) shall be satisfactory to the Agent and the Required Lenders.
(iv) The Borrower shall have used the aggregate amount received evidence that all from the Equity Issuance and the Subordinated Notes to make payments owing in connection with the Tender Offer before utilizing any proceeds of Loans pursuant to the Senior Bank Financing for such purpose.
(v) All necessary government and third party approvals in connection with the Transaction (other than any shareholder approval of the obligations Merger) and the other transactions contemplated by the Senior Bank Financing and otherwise referred to herein (including without limitation any consents required under the Acquired Business' debt agreements) shall have been obtained and remain in effect, and all applicable waiting periods shall have expired without any action being taken by any competent authority which restrains, prevents, or imposes materially adverse conditions upon, the consummation of the Credit Parties Transaction or the other transactions contemplated by the Senior Bank Financing and otherwise referred to Royal Bank herein.
(vi) The Lenders shall have become aware of Canada under no facts or conditions not previously known, and since October 31, 1999 nothing shall have occurred which the Existing Credit Facility as in Agent or the Required Lenders shall reasonably determine could reasonably be expected to have a material adverse effect immediately prior on the rights or remedies of the Lenders or the Agent, or on the ability of Holdings, the Bor rower, the Acquired Business and their respective subsidiaries to perform their obligations to the Closing Date will Lenders or which could reasonably be performed expected to have a materially adverse effect on the business, property, assets, nature of assets, liabilities, condition (financial or otherwise), results of operations or prospects of Holdings, the Borrower, the Acquired Business and paid in full from the proceeds of the initial Loans;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) their subsidiaries taken as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) the insurance policies provided for in Section 3.16 shall be in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour of Xxxxxx as required under such Section;
(f) as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 a whole after giving effect to the initial Revolving Credit Advances Transaction.
(vii) No litigation by any entity (private or governmental) shall be pending or threatened with respect to the Transaction, the Senior Bank Financing or any documentation executed in connection therewith (which could be reasonably expected to have a material adverse effect on the Transaction) or which the Agent or the Required Lenders shall reasonably determine could reasonably be expected to have a materially adverse effect on the business, property, assets, nature of assets, liabilities, condition (financial or otherwise) or prospects of Holdings, the Borrower, the Acquired Business and Letter of Credit Obligations their subsidiaries taken as a whole.
(calculated on a pro forma basis, with trade payables being paid currentlyviii) The Lenders shall have received legal opinions from counsel, and expenses covering matters, reasonably acceptable to the Agent and liabilities being paid in the ordinary course of business and without acceleration of sales);Required Lenders.
(gix) if required pursuant to Section 5.1(b)The corporate and capital structure (and all agreements related thereto, including any rights plans) of Holdings, the Canadian Borrower, the Acquired Business and their respective subsidiaries, and all organizational documents of such entities shall be reasonably satisfactory to the Agent and the Required Lenders.
(x) All Loans and other financings to Holdings and the Borrower shall be in full compliance with all applicable requirements of the margin regulations and the Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;delivered an appropriately completed Form U-1 for each Lender.
(hxi) Xxxxxx All costs, fees, expenses (including, without limitation, reasonable legal fees and expenses) and other compensation contemplated hereby payable to the Lenders or the Agent shall have been paid to the extent due.
(xii) The Lenders shall have received opinions of counsel to each value and other appropriate factual information and expert advice (including without limitation, (i) a report of the Credit Parties value of the inventory and receivables of the Borrower and its Subsidiaries, (including opinions relating ii) insurance analyses in scope, and in form and substance, reasonably acceptable to enforceabilitythe Agent and the Required Lenders, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion(iii) a solvency opinion with respect to each Loan Document the Borrower and its subsidiaries reasonably acceptable to the Agent and the Required Lenders.
(xiii) All labor and related employee agreements and liabilities, and all pension and other employee benefit plans and liabilities (including, without limitation, with respect to retiree health benefits), and all insurance policies of Holdings, the Borrower and the Acquired Business and their respective subsidiaries shall be in form force and substance shall be reasonably satisfactory to Lender;the Agent and the Required Lenders.
(ixiv) Lender (Holdings, the Borrower and where applicable, Xxxxxx’s counsel) their respective subsidiaries shall have completed no other indebtedness for borrowed money or liens except such indebtedness and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (liens which shall be current within 3 monthspermitted under the Senior Bank Financing.
(a) conducted Trading in securities generally on the New York or American Stock Exchange shall not have been suspended; minimum or maximum prices shall not have been established on any such exchange; (b) a banking moratorium shall not have been declared by New York or United States authorities and any foreign power; and (c) there shall not have been (x) an appraisal firm acceptable out break or escalation of hostilities between the United States and any foreign power, or (y) an outbreak or escalation of any other insurrection or armed conflict involving the United States or any other national or international calamity or emergency, or (z) any material change in the general financial markets of the United States which, in each case, in the reasonable judgment of the Agent or the Required Lenders, would materially and adversely affect the ability to Xxxxxx, and with regard sell or syndicate loans of a nature similar to the Collateral, the inventory control systems, the books and records Senior Bank Financing.
(xvi) The Agent and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender Lenders shall have received, and same shall continue be satisfied with, an opening pro forma balance sheet of Holdings --- ----- and its subsidiaries, in each case after giving effect to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan DocumentsTransaction, and certificates of incumbency, for Borrowers and each other Credit Party;a related funds flow statement.
(oxvii) Lender The Agent and the Lenders shall have received and completed their review of Uniform Commercial Code, judgment and tax lien searches for Holdings, the Borrower, the Acquired Business and their respective subsidiaries and after such completion, the Agent and the Required Lenders shall be satisfied in their reasonable discretion with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;results thereof.
(pxviii) a Compliance Certificate The Lenders shall have been submitted prior to a perfected first priority security inter est in all shares of the Closing Date confirming all required covenants have been met; and
(q) Acquired Business owned by Holdings and the Lender shall have received all fees and other amounts due and payable on Borrower, whether acquired through the Tender Offer or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Documentotherwise.
Appears in 1 contract
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender, which conditions shall not survive the Closing unless specifically set forth in a post-closing obligations letter signed by Borrowers and Lender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence that all of the obligations of the Credit Parties Borrowers to Royal Wachovia Bank of Canada under the Existing Credit Facility their financing documentation as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial LoansLoans and all Liens upon any of the property of any Borrower or any other Credit Party in respect thereof shall have been terminated immediately upon such payment;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) evidence satisfactory to it that the insurance policies provided for in Section 3.16 shall be are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fd) Lender shall have received an opinion(s) of counsel to the Borrowers and the Guarantors with respect to the Loan Documents in form and substance satisfactory to Lender;
(e) as of the Closing Date, Net Borrowing Availability for all Borrowers combined shall be not less than $8,000,000 500,000 after giving effect to the initial Revolving Credit Advances Advance and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currentlyand taxes no more than 60 days past due, and expenses and liabilities (other than the El Cajon Lease) being paid in the ordinary course of business and without acceleration of sales); provided, however, that the Stockholders of Marlton (or any one of them) may, in such Stockholder's sole discretion, make loans to the Borrowers (the "Closing Date Stockholder Loans") in order to achieve the above-referenced minimum Net Borrowing Availability; provided, further, in order for such loans to count towards such Net Borrowing Availability, each Stockholder who makes such a loan shall execute and deliver to Lender an Intercreditor and Subordination Agreement in favor of Lender in the form attached hereto as Exhibit K (each such Agreement shall contain the repayment provisions described in Section 3.22);
(gf) if required pursuant to Section 5.1(b), the Canadian Borrower Lender shall have a cash balance in verified the Reserve Account Accounts of no less than the amount necessary Borrowers, such verification to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx shall have received opinions of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each Loan Document be in form and substance satisfactory to Lender;
(ig) payment by Borrowers of all fees, costs and expenses payable by Borrowers hereunder that have accrued as of the Closing Date;
(h) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental its business and legal due diligence (including of Borrowers and their operations, including, but not limited to, pre-closing collateral audit, review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the significant customer contracts of each Borrower and background and reference checks on (i) Borrowers, (ii) their respective shareholders, officers and directors, (iii) each Guarantor and (iv) all other Credit Parties;
(ki) Lender shall have been provided obtained and investigated references with respect to each Borrower's vendors in form and be satisfied with substance satisfactory to Lender in its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been metsole discretion; and
(qj) the Lender Borrowers shall have received all fees and other amounts due and payable on or prior complied, to the Closing Datesatisfaction of Lender, includingwith all of the other terms and conditions set forth in that certain Commitment Letter dated October 31, reimbursement or payment of all for all costs and expenses 2003 (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants"Commitment Letter"), field examinersfrom Lender to Borrowers, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan DocumentMarlton and Sparks Holding.
Appears in 1 contract
Samples: Loan and Security Agreement (Marlton Technologies Inc)
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans Loans, or to take, fulfill, or perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence that satisfactory to it that: (i) all of the obligations of the Credit Parties Borrower to Royal Bank of Canada Congress Financial Corporation under the Existing Credit Facility its financing documentation as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans; and (ii) all Liens upon any of the property of Borrower or any other Credit Party in favor of Congress Financial Corporation shall have been terminated immediately upon such payment;
(c) Lender shall have received evidence satisfactory to it that each Credit Party has obtained all consents and shall acknowledgments of all Persons and Governmental Authorities whose consents or acknowledgments may be satisfied with required prior to the execution and delivery of this Agreement and the other Loan Documents (or pursuant to the terms hereof or thereof) and the consummation of the transactions contemplated hereby and thereby and that such estoppel letters, landlord waivers, mortgagee, processor consents or acknowledgments remain in full force and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretioneffect;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) evidence satisfactory to it that the insurance policies provided for in Section 3.16 shall be 3.17 are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fe) as of the Closing Date, Date Net Borrowing Availability shall be not less than $8,000,000 250,000 after giving effect to the initial Revolving Credit Advances Advance and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(f) Lender shall have received an opinion of counsel to the Borrower with respect to the Loan Documents in form and substance satisfactory to Lender;
(g) if required pursuant to Section 5.1(b)payment by Borrower of all fees, costs, and expenses payable by Borrower hereunder that have accrued as of the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease FacilityClosing Date;
(h) Xxxxxx Lender shall have received opinions xxxx and hold letters from all of counsel to each of the Credit Parties (including opinions relating to enforceabilityBorrower's Account Debtors with xxxx and hold Accounts, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each Loan Document case in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with received an executed original copy of the results of all business, environmental and legal due diligence (including review with results satisfactory Intercompany Note properly endorsed to Lender of Borrower’s union contracts, if applicable)Lender;
(j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which Borrower's cash management system shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and in compliance with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit PartiesSchedule D;
(k) Lender shall have been provided with received any environmental surveys that it shall have requested of Borrower and shall otherwise be satisfied with its review ofthe environmental condition of Borrower's Phoenixville, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documentsPennsylvania real property;
(l) Lender shall have reviewed received an executed liquidation assistance agreement among Borrower, members of senior management of The Eastwind Group, Inc. and be satisfied with Credit Parties’ customers’ contracts (including distribution agreementsmembers of senior management of Borrower, licence agreements and supply agreements) and, if requested by Lender, substantially in the purchase orders relating theretoform of Exhibit R;
(m) Lender shall have completed received an executed assignment, in form and be satisfied with substance satisfactory to Lender, of Borrower's rights under the results insurance agreement, dated June 11, 1998, between Borrower and the Export-Import Bank of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;United States; and
(n) Lender shall have received, and same shall continue to be valid and current, certified copies received an executed pledge agreement made by Borrower in favor of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior respect to the Closing Date confirming all required covenants have been met; and
(q) Intercompany Note, in substantially the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment form of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan DocumentExhibit L-2.
Appears in 1 contract
Samples: Loan and Security Agreement (Conmat Technologies Inc)
Conditions to the Initial Loans. Lender shall not be obligated to ------------------------------- make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender all on or before November 30, 1999:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);; ----------
(b) Lender shall have received evidence satisfactory to it that all Liens, other than Permitted Encumbrances, upon any of the obligations property of the any Borrower or any other Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date Party shall have been or will be performed and paid in full from terminated immediately on the proceeds of date the initial Loansfirst Loan is made hereunder;
(c) Lender shall have received evidence satisfactory to it that each Credit Party has obtained all consents and shall acknowledgments of all Persons and Governmental Authorities whose consents or acknowledgments may be satisfied with required prior to the execution and delivery of this Agreement, the other Loan Documents or the Closing Date Acquisition Documents (or pursuant to the terms here or thereof) and the consummation of the transactions contemplated hereby and thereby and that such estoppel letters, landlord waivers, mortgagee, processor consents or acknowledgments remain in full force and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretioneffect;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) evidence satisfactory to it that the insurance policies provided for in Section 3.16 shall be 3.17 are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fe) as of the Closing Date, Date Net Borrowing Availability for all Borrowers combined shall be not less than $8,000,000 1,500,000 after giving effect to the initial Revolving Credit Advances Advance and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(f) Lender shall have received an opinion of counsel to the Borrowers with respect to the Transaction Documents (excluding the Ash Corp. Acquisition Documents) addressing the matters set forth on Exhibit M in form and substance satisfactory to Lender;
(g) if required pursuant to Section 5.1(b), the Canadian Borrower Lender shall have a cash balance received evidence satisfactory to it that the purchase price payable in connection with the Reserve Account of no less than Closing Date Acquisitions plus the amount necessary of assumed liabilities and aggregate fees and closing costs (including those payable to satisfy 1 years worth of lease payments required under the RBC Lease FacilityLender) shall not exceed $3,500,000;
(h) Xxxxxx shall have received opinions the Closing Date Acquisitions and the transfer of counsel title to each the assets being acquired thereby free and clear of all Liens and encumbrances in connection therewith except for Permitted Encumbrances and the Credit Parties documentation relating thereto (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretionAcquisition Documents) with respect to each Loan Document shall in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results been provided evidence satisfactory to Lender of Borrower’s union contracts, if applicable)that the transactions contemplated by the Closing Date Acquisition Documents will be consummated on the Closing Date in accordance with the Closing Date Acquisition Documents;
(j) Lender shall have received in form and be satisfied with substance satisfactory to it a pro forma consolidated and consolidating balance sheets of the results of, Xxxxxxxx’s field exam and inventory appraisal (Borrowers which balance sheets shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard give effect to the Collateral, the inventory control systems, the books and records Closing Date Acquisitions and the reporting capability incurrence of the Credit PartiesObligations to be incurred on the Closing Date;
(k) Lender shall have been provided received executed copies of each of the Closing Date Acquisition Documents (including all exhibits, schedules, disclosure letter and opinions referred to therein or delivered pursuant thereto), and any landlords and any stockholders' agreement, voting trust agreement, stock redemption agreement or any other agreement with shareholders of the Leading Borrower in each case and be satisfied with its review ofin effect on the Closing Date in form and substance satisfactory to Lender, each Credit Parties’ documents regarding its corporate certified by an authorized officer of the Leading Borrower as true, correct and capital structure, Material Contracts, debt instruments and governing documentscomplete copies thereof;
(l) Lender shall have reviewed received a certificate from the chief financial officer of the Leading Borrower certifying that (i) upon payment of the purchase price, each Closing Date Acquisition shall have been consummated in accordance with the Closing Date Acquisition Documents, (ii) the representations and be satisfied with Credit Parties’ customers’ contracts warranties of any Borrower in the Closing Date Acquisition Documents are true, complete and correct in all material respects on and as of the Closing Date (including distribution agreements, licence agreements and supply agreements) andor, if requested by Lenderany such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date) and (iii) to the purchase orders relating thereto;best knowledge of the Borrowers, no Person or party to any Closing Date Acquisition Document is in default in the performance or compliance with any of the material terms or provisions of any Closing Date Acquisition Document; and
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue evidence satisfactory to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable it that on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required Date Leading Borrower has issued its series A preferred stock $.001 par value on terms satisfactory to be reimbursed or paid by the Borrowers hereunder or under any other Loan DocumentLender.
Appears in 1 contract
Samples: Loan and Security Agreement (Nutrition for Life International Inc)
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans Loans, or to take, fulfill, or perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);; 6
(b) Lender shall have received evidence satisfactory to it that all Liens upon any of the obligations Collateral (other than Permitted Encumbrances) shall have been terminated immediately upon payment of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial LoansIndebtedness secured by such Liens;
(c) Lender shall have received evidence satisfactory to it that each Credit Party has obtained all consents and shall acknowledgments of all Persons and Governmental Authorities whose consents or acknowledgments may be satisfied with required prior to the execution and delivery of this Agreement, the other Loan Documents and the Acquisition Documents and the consummation of the transactions contemplated hereby and thereby and that such estoppel letters, landlord waivers, mortgagee, processor consents or acknowledgments remain in full force and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretioneffect;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) evidence satisfactory to it that the insurance policies provided for in Section 3.16 shall be 3.17 are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fe) Lender shall have completed a field audit of Seller and the results thereof shall be satisfactory to Lender, and as of the Closing Date, Date Net Borrowing Availability shall be not less than $8,000,000 700,000 after giving effect to the initial Revolving Credit Advances Advance and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(gf) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions an opinion of counsel to for each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) Party with respect to each the Loan Document Documents in form and substance satisfactory to Lender;
(g) payment by Borrower of the Closing Fee and all other fees, costs, and expenses payable by Borrower hereunder that have accrued as of the Closing Date;
(h) Lender shall have received evidence satisfactory to it that the purchase price payable by Borrower in connection with the Acquisition plus the amount of assumed liabilities and aggregate fees and closing costs (including those payable to Lender) shall not exceed $1,900,000 (provided, that the liabilities assumed by Borrower shall not exceed $300,000, the aggregate fees and closing costs in connection with the Acquisition shall not exceed $100,000 and the cash portion of the purchase price paid to Seller shall not exceed $500,000);
(i) Lender the Acquisition, the assignment and terms of all leases, contracts, licenses, agreements and intellectual property, and the transfer of title to the assets being purchased thereby free and clear of all Liens and encumbrances in connection therewith, and the documentation relating thereto (and where applicable, Xxxxxx’s counselincluding the Acquisition Documents) shall have completed be in form and be satisfied with the results of all business, environmental and legal due diligence (including review with results substance satisfactory to Lender of Borrower’s union contracts, if applicable)Lender;
(j) Lender shall have received and evidence satisfactory to Lender that the transactions contemplated by the Acquisition Documents will be satisfied consummated on the Closing Date in accordance with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit PartiesAcquisition Documents;
(k) Lender shall have received evidence satisfactory to Lender that (i) each of Borrower and Seller (a) has filed any required notification under Section 7A of the Clayton Act (Title II of the Hart-Scott-Rodino Antitrust Improvements Xxx 0076, as amended (the "HXX Xxx")) xxx xxx rules and regulations pxxxxxxxxed thereunder and (b) has complied with all requests for additional information and documentary material from the Federal Trade Commission or the Antitrust Division of the Department of Justice pursuant to the HSR Act and (ii) all waiting periods applicable to the Acquisition under the HSR Act have expired or been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documentsterminated;
(l) Lender shall have reviewed received in form and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements substance satisfactory to it a pro forma balance sheet of Borrower which balance sheet shall give effect to the Acquisition and supply agreements) and, if requested by Lender, the purchase orders relating theretoincurrence of the Obligations;
(m) Lender shall have completed and be satisfied with the results received executed copies of each of the background Acquisition Documents (including all exhibits, schedules, disclosure letters and reference checks opinions referred to therein or delivered pursuant thereto), and any landlord agreement, any employment agreement, and any stockholders' agreement, voting trust agreement, stock redemption agreement or any other agreement with shareholders of Borrower in each case as and in effect on Borrowerthe Closing Date in form and substance satisfactory to Lender, senior management certified by an authorized officer of Borrowers Borrower as true, correct and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulationscomplete copies thereof;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies received a certificate from the chief financial officer of all the constating documents, by-laws and resolutions Borrower certifying that (i) upon payment of the directors (or partnerspurchase price, members or shareholders as required by Xxxxxx) authorizing the Loan Acquisition shall have been consummated in accordance with the Acquisition Documents, (ii) the representations and certificates warranties of incumbencythe Borrower in the Acquisition Documents are true, for Borrowers complete and each other Credit Partycorrect in all material respects on and as of the Closing Date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date) and (iii) to the best knowledge of Borrower, no Person party to any Acquisition Document is in default in the performance or compliance with any of the material terms or provisions of any Acquisition Document;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following evidence satisfactory to it that on or prior to the Closing Date (including projections Borrower has received $500,000 of balance sheet, operating results, gross cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listingproceeds from the issuance of additional common stock to P.G. Design on terms satisfactory to Lender;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable evidence satisfactory to it that on or prior to the Closing Date, includingBorrower shall have issued an unsecured subordinated promissory note to Seller in the principal amount of $1,100,000 on terms satisfactory to Lender (the "Seller Note"), reimbursement or payment and Seller shall have executed a subordination agreement in favor of all for all costs Lender on terms satisfactory to Lender (the "Seller Subordination Agreement");
(q) Borrower shall have provided Lender with a satisfactory capital budget;
(r) after giving effect to the Acquisition, Borrower's corporate and expenses capital structure and Borrower's material contracts (including the fees any mandatory take-back agreements) shall be in form and expenses of all counsel, advisors, consultants substance satisfactory to Lender; and
(including environmental s) Borrower and management consultants), field examiners, appraisers required Lender shall have received an indemnity from HTI in form and substance satisfactory to be reimbursed Lender with respect to any applicable bulk sales or paid by the Borrowers hereunder or under any other Loan Documentsimilar laws.
Appears in 1 contract
Samples: Loan and Security Agreement (Heartland Technology Inc)
Conditions to the Initial Loans. Lender shall not be obligated to make any -------------------------------- of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
; ------------ (b) Lender shall have received evidence that all of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) the insurance policies provided for in Section 3.16 shall be are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
; (fc) as of the Closing Date, Date Net Borrowing Availability shall be not less than $8,000,000 5,000,000 after giving effect to the initial Revolving Credit Advances Advance and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
; (gd) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions an opinion of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) Borrower with respect to each the Loan Document Documents in form and substance satisfactory to Lender;
; (ie) Lender no event or circumstance has occurred since the date of the Agreement which has had or reasonably could be expected to have a Material Adverse Effect; and (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(jf) Lender shall have received satisfactory results of Lender's pre-funding field examination of Borrower and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Salix Pharmaceuticals LTD)
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule FE);
(b) Lender shall have received evidence that all of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers(in a form and substance acceptable to Lender in its sole discretion), mortgagee, processor and bailee or third party distributor waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion, provided that any such estoppel letter or waivers where Lender has taken an Availability Reserve shall not be a condition precedent to the making of any of the Loans;
(dc) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(ed) the insurance policies provided for in Section 3.16 shall be in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour of Xxxxxx Lender as required under such Section;
(fe) as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(g) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions an opinion of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretiona standard enforceability opinion) with respect to each Loan Document to which such Credit Party is a party, in form and substance satisfactory to Lender, acting reasonably;
(if) Lender (and where applicable, XxxxxxLender’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable)diligence;
(jg) Lender shall have received received, and be satisfied with with, the results of, Xxxxxxxx’s field exam and inventory of Credit Parties’ Equipment appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit PartiesLender;
(kh) Lender shall have been provided with with, and be satisfied with with, its review of, each of Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, Contracts and debt instruments and governing documentsinstruments;
(li) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreementscontracts, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(mj) Lender shall have completed and be satisfied with the results of the background and reference checks on BorrowerCredit Parties’, and senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;Parties; and
(nk) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by XxxxxxLender) authorizing the Loan Documents, and certificates of incumbency, for Borrowers Borrower and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender the Existing Notes shall have received evidence that all of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and been paid in full from the proceeds of the initial LoansLoans and/or converted into shares of Borrower’s Stock and all Liens upon any of the property of Borrower or any other Credit Party in respect thereof shall have been terminated immediately upon such payment;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) evidence satisfactory to it that the insurance policies provided for in Section 3.16 shall be are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fd) Lender shall have received evidence satisfactory to it that Borrower has received, on or immediately prior to the Closing Date, cash equity contributions in an aggregate amount of not less than $5,800,000;
(e) as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 5,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations Advance (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);; and
(g) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx shall have received opinions of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each Loan Document in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(jf) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 monthsan opinion(s) conducted by an appraisal firm acceptable to Xxxxxx, and with regard of counsel to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided Borrower with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue respect to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, Documents in form and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior substance reasonably satisfactory to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan DocumentLender.
Appears in 1 contract
Samples: Loan and Security Agreement (House of Taylor Jewelry, Inc.)
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence that all of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers(in the form of Exhibit E or otherwise as acceptable to Lender in its sole discretion), mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(dc) Lender shall have received and shall be satisfied with such subordination subordination, postponement and intercreditor agreements as Lender may require in its discretion;
(ed) the insurance policies provided for in Section 3.16 shall be in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour of Xxxxxx Lender as required under such Section;
(fe) as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(g) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions an opinion of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretiona standard enforceability opinion) with respect to each Loan Document in form and substance satisfactory to Lender;
(if) Lender (and where applicable, XxxxxxLender’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(jg) Lender shall have completed, or caused to be completed, and be satisfied with the results of a Field Examination in respect of Borrower;
(h) Lender shall have received and be satisfied with the results of, XxxxxxxxBorrower’s field exam and inventory appraisal (which shall be current within 3 monthsappraisal(s) conducted by an appraisal firm Firm acceptable to XxxxxxLender, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(ki) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ Borrower’s documents regarding its corporate and capital structure, Material Contractsmaterial contracts, debt instruments and governing documents;
(lj) Lender shall have reviewed and be satisfied with Borrower’s customer’s contracts, including contracts among the Credit Parties’ Parties and each of and any customers’ contracts (including distribution agreements, licence agreements and supply agreements) requested by the Lender and, if requested by Lender, the purchase orders relating thereto;
(mk) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers Borrower and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulationsParties;
(n1) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by XxxxxxLender) authorizing the Loan Documents, and certificates of incumbency, for Borrowers Borrower and each other Corporate Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Samples: Loan Agreement (Vicinity Motor Corp)
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans Loans, or to take, fulfill, or perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence satisfactory to it that each Credit Party has obtained all consents and acknowledgments of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately all Persons and Governmental Authorities whose consents or acknowledgments may be required prior to the Closing Date will be performed execution and paid delivery of this Agreement and the other Loan Documents (or pursuant to the terms hereof or thereof) and the consummation of the transactions contemplated hereby and thereby and that such consents or acknowledgments remain in full from the proceeds of the initial Loansforce and effect;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) evidence satisfactory to it that the insurance policies provided for in Section 3.16 shall be 3.17 are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fd) as of the Closing Date, date Net Borrowing Availability shall be not less than $8,000,000 3,000,000 after giving effect to the initial Revolving Credit Advances Advance and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(ge) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions an opinion of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) Borrower with respect to each the Loan Document Documents in form and substance satisfactory to Lender;
(if) Lender (payment by Borrower of the Closing Fee and where applicableall other fees, Xxxxxx’s counsel) shall costs, and expenses payable by Borrower hereunder that have completed and be satisfied with accrued as of the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);Closing Date; and
(jg) Lender shall have received and be satisfied with an assignment of the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records Video Note and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with Caribe Notes in form and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by substance satisfactory to Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Sentry Technology Corp)
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
; (b) Lender shall have received evidence that except for the Indebtedness evidenced by the Fleet Note, all of the obligations of the Credit Parties Borrowers to Royal Bank of Canada Fleet and The CIT Group under the Existing Credit Facility their financing documentation as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans;
Loans and all Liens upon any of the property of any Borrower or any other Credit Party in respect thereof shall have been terminated or subordinated on terms and conditions and pursuant to agreements satisfactory to Lender immediately upon such payment; (c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) the insurance policies provided for in Section 3.16 shall be are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
; (fd) as of the Closing Date, Date Net Borrowing Availability for all Borrowers combined shall be not less than $8,000,000 1,000,000 after giving effect to the initial Revolving Credit Advances Advance and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
; (ge) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) Borrowers with respect to each the Loan Document Documents in form and substance satisfactory to Lender;
; (f) Lender shall have received an opinion of counsel to Guarantor with respect to the Guaranty and any other Loan Documents executed by the Guarantor in connection with this Agreement, which opinion of counsel shall be in form and substance satisfactory to Lender; (g) Lender shall have received a copy of the Fleet Documents in form and substance satisfactory to Lender; (h) The liabilities (contingent or otherwise) of each Credit Party relating to the Pegos Guaranty shall have been subordinated on terms satisfactory to Lender pursuant to documentation in form and substance satisfactory to Lender; (i) Lender (The Liens granted to the State of Connecticut by each Credit Party relating to the grant in the amount of $200,000 from the State of Connecticut shall secure an amount not to exceed the principal amount of $200,000 and where applicable, Xxxxxx’s counsel) shall have completed be subordinate to the Liens in favor of Lender; and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results ofcorporate structure, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contractsterms and amounts of other Indebtedness, debt instruments material Contracts and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results organizational documents of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Edac Technologies Corp)
Conditions to the Initial Loans. Notwithstanding any other provision of this Agreement and without affecting in any manner the rights of Lender hereunder, Lender shall not be obligated hereunder to make any of the initial Loans or to take, fulfill, or perform any other action hereunder, unless and until each and every of the following conditions have been satisfied satisfied, in a manner satisfactory to Lender in its Lender's sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on This Agreement or before the Closing Date counterparts thereof shall have been duly executed by, and delivered to, Borrower and Lender and Guarantor shall have consented to the execution, delivery and performance of this Agreement and the Subordination Agreement and agreed to be bound by signing one or more counterparts of this Agreement in the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);space indicated below and returning same to Lender.
(b) Lender shall have received evidence that such documents, instruments and agreements as Lender shall request in connection with the transactions contemplated by this Agreement, including all documents, instruments, agreements listed in the Schedule of the obligations of the Credit Parties Documents, each in form and substance satisfactory to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans;Lender.
(c) Evidence satisfactory to Lender shall have received that Borrower's only Indebtedness is that incurred or permitted under the GE Capital Credit Agreement and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;that Borrower's only Liens on any of the Collateral are limited to those held by GE Capital pursuant to the GE Capital Credit Agreement or permitted by GE Capital pursuant to the GE Capital Credit Agreement.
(d) Evidence satisfactory to Lender shall have received that each Credit Party has obtained consents and shall acknowledgments of all Persons whose consents and acknowledgments may be satisfied with such subordination required (if any), including, but not limited to, all requisite Governmental Authorities, to the terms, and intercreditor agreements as Lender may require in its discretion;to the execution and delivery, of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby.
(e) Evidence satisfactory to Lender that the insurance policies provided for in Section 3.16 shall be SECTION 3.20 are in full force and effect, together with appropriate evidence showing loss payable endorsements or clauses in favor of Lender and in form and substance acceptable to Lender, and that Lender has been named an additional insured clauses or endorsements in favour of Xxxxxx under Borrower's liability policies, all as required under such Section;by SECTION 5.5(b) hereof.
(f) A duly completed and executed initial Borrowing Capacity Certificate shall have been delivered to Lender by Borrower demonstrating to Lender's satisfaction that the Net Liquidation Value of Inventory of Borrower is sufficient to support the initial Loans.
(g) Payment by Borrower of the Fees due on the Closing Date as provided in SECTION 1.6 above together with all reasonable fees, costs and expenses of closing incurred by Lender (including the reasonable fees of consultants and special counsel to Lender presented as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 after giving effect ) to the initial Revolving Credit Advances and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(g) if required extent Borrower is obligated to reimburse Lender therefor pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx shall have received opinions of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each Loan Document in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan DocumentSECTION 10.2 hereof.
Appears in 1 contract
Samples: Credit Agreement (Specs Music Inc)
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by Xxxxxx:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence that all of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) the insurance policies provided for in Section 3.16 shall be in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour of Xxxxxx as required under such Section;
(f) as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(g) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility[reserved];
(h) Xxxxxx shall have received opinions of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each Loan Document in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxxexam, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans Loans, or to take, fulfill, or perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence that satisfactory to it that: (i) all of the obligations of the Credit Parties Borrower to Royal Bank of Canada Transport Clearings under the Existing Credit Facility its financing documentation as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans; and (ii) all Liens upon any of the property of Borrower or any other Credit Party in favor of Transport Clearings shall have been terminated immediately upon such payment;
(c) Lender shall have received evidence satisfactory to it that each Credit Party has obtained all consents and shall acknowledgments of all Persons and Governmental Authorities whose consents or acknowledgments may be satisfied with required prior to the execution and delivery of this Agreement and the other Loan Documents (or pursuant to the terms hereof or thereof) and the consummation of the transactions contemplated hereby and thereby and that such estoppel letters, landlord waivers, mortgagee, processor consents or acknowledgments remain in full force and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretioneffect;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) evidence satisfactory to it that the insurance policies provided for in Section 3.16 shall be 3.17 are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fe) as of the Closing Date, Date Net Borrowing Availability shall be not less than $8,000,000 200,000 after giving effect to the initial Revolving Credit Advances Advance and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(gf) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions an opinion of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) Borrower with respect to each the Loan Document Documents in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(qg) payment by Borrower of the Lender shall Closing Fee and all other fees, costs, and expenses payable by Borrower hereunder that have received all fees and other amounts due and payable on or prior to accrued as of the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence that all of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) the insurance policies provided for in Section 3.16 shall be in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour of Xxxxxx Lender as required under such Section;
(f) as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(g) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each Loan Document in form and substance satisfactory to Lender;
(i) Lender (and where applicable, XxxxxxLender’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results of, XxxxxxxxBorrower’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to XxxxxxLender, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by XxxxxxLender) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Conditions to the Initial Loans. Lender shall not be obligated The obligations of Lenders to make any the initial Loans are, in addition to the conditions precedent specified in subsection 3.2, subject to prior or concurrent satisfaction of the Loans following conditions:
A. On or before the Closing Date, Company shall deliver to Lenders (or to perform any Administrative Agent for Lenders with sufficient originally executed copies for each Lender and, except for Notes, Administrative Agent's counsel) each, unless otherwise noted, dated the Closing Date:
1. Certified copies of its Certificate of Incorporation, together with a good standing certificate from the Secretary of State of the State of Delaware, each to be dated a recent date prior to the Closing Date;
2. Copies of its Bylaws, certified as of the Closing Date by its corporate secretary or an assistant secretary;
3. Resolutions of its Board of Directors approving and authorizing the execution, delivery and performance of this Agreement and the other action hereunderLoan Documents to which it is to be a party and approving and authorizing the execution, until delivery and payment of the following conditions have been satisfied Notes and the consummation of the Refinancings and related transactions, in a manner form and substance satisfactory to Agents and their counsel, each certified as of the Closing Date by its corporate secretary or an assistant secretary as being in full force and effect without modification or amendment;
4. Signature and incumbency certificates of its officers executing this Agreement, the other Loan Documents to which it is to be a party and the Notes;
5. Executed copies of this Agreement, the Company Pledge Agreement and the Notes, executed in accordance with subsection 2.1E, substantially in the form of Exhibit III annexed hereto, drawn to the order of each Lender in its sole discretionand with appropriate insertions; and
6. Such other documents as any Agent or any Lender may reasonably request.
B. On or before the Closing Date, each of the Xxxx-Xxxxxx Guarantor Subsidiaries that are Material Subsidiaries and each of the other Xxxx-Xxxxxx Subsidiaries that are Material Subsidiaries shall execute and deliver to Lenders (or waived in writing by Xxxxxxto Administrative Agent for Lenders with sufficient originally executed copies for each Lender and Administrative Agent's counsel), each, unless otherwise noted, dated the Closing Date:
(a) 1. Certified copies of its Certificate of Incorporation, together with a good standing certificate from the Secretary of State of the jurisdiction of its incorporation, each to be dated a recent date prior to the Closing Date;
2. Copies of its Bylaws, certified as of the Closing Date by its corporate secretary or an assistant secretary;
3. Resolutions of its Board of Directors approving and authorizing the execution, delivery and performance of the Loan Documents to which it is to be a party, in form and substance satisfactory to the Agents and their counsel, each certified as of the Closing Date by its corporate secretary or an assistant secretary as being in full force and effect without modification or amendment;
4. Signature and incumbency certificates of its officers executing the Loan Documents to which it is a party;
5. With respect to each Xxxx-Xxxxxx Guarantor Subsidiary, executed copies of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement; and
6. Such other documents as any Agent or any Lender may reasonably request.
C. On or before the Closing Date, each Loan Party shall have obtained all such consents, waivers, amendments, approvals and the like as may be required from any Person to permit the Refinancings and the other related transactions, including the consummation of the transactions contemplated by this Agreement, all of the foregoing to be in form and substance satisfactory to the Agents.
D. On or prior to the Closing Date, the Company shall have issued $125,000,000 aggregate principal amount of New Senior Subordinated Notes. The New Senior Subordinated Notes shall be unsecured and shall have no scheduled principal payments payable prior to the tenth anniversary of the Closing Date. In addition, all other terms of the New Senior Subordinated Notes shall be satisfactory to the Agents and Lenders. The New Senior Subordinated Notes will not rank senior to the Company's 9 1/8% Subordinated Notes.
E. Concurrently with the Closing Date, the Company shall have terminated all commitments, and shall have repaid in full all outstanding Indebtedness, and all security therefor will be released from the liens and pledges created, under the Existing Term Loan Agreement, the Existing Revolving Credit Agreement and the Existing L/C Agreement and all such agreements and documents will terminate in accordance with their terms. As of the Closing Date, the Company shall have no indebtedness other than Indebtedness under this Agreement, $150,000,000 aggregate principal amount of 9 1/8% Subordinated Notes, $125,000,000 aggregate principal amount of New Senior Subordinated Notes, approximately $8,200,000 of other long-term debt obligations and $120,000,000 of Receivables Facilities.
F. Company shall have furnished to Administrative Agent copies of all Existing Letters of Credit and all amendments to such Existing Letters of Credit. Company shall have paid to the lenders with respect to such Existing Letters of Credit all fees and other amounts owing with respect thereto to but excluding the Closing Date. With respect to letters of credit issued under the Existing L/C Agreement which do not become Existing Letters of Credit under this Agreement, Company shall have replaced or supported all such letters of credit with Letters of Credit issued under this Agreement or such letter of credit shall be otherwise permitted hereunder.
G. The Agents shall have received satisfactory evidence that the fees and expenses to be incurred in connection with the Refinancings and the related transactions will not exceed $6,000,000 in the aggregate.
H. The Lenders shall have received (i) audited financial statements of the Company and its Subsidiaries for the fiscal years ended December 31, 1994, 1995 and 1996, and (ii) a pro forma balance sheet of the Company and its Subsidiaries as of December 31, 1996 after giving effect to the Refinancings, the related transactions and the transactions contemplated hereby, all of the foregoing to be in form and substance satisfactory to the Agents and Lenders.
I. Company shall have delivered to the Agents a Financial Condition Certificate dated the Closing Date, substantially in the form annexed hereto as Exhibit XI, with appropriate attachments demonstrating that, after giving effect to the consummation of the Refinancings and related transactions, Company will have a positive net worth on a pro forma basis, will not be insolvent by the Indebtedness incurred in connection herewith, will be able to pay its debts as they mature and will not have unreasonably small capital to conduct its business.
J. On or before the Closing Date, Agents shall have received reports and other information in form, scope and substance satisfactory to Administrative Agent concerning the environmental liabilities of Company.
K. On or before the Closing Date, Agents shall have received information concerning the litigation and potential liabilities of Company with respect to Centaur Insurance Company in form, scope and substance satisfactory to the Agents.
L. On or before the Closing Date, Company shall have paid to Administrative Agent for distribution to Lenders, the Agents and their respective affiliates, the fees referred to in subsection 2.3 and payable to such parties on the Closing Date. Administrative Agent and the other Agents shall have paid to each Lender such fees as Administrative Agent and the other Agents shall have agreed to pay such Lender on the Closing Date.
M. On or before the Closing Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by the Agents, acting on behalf of Lenders, and their counsel shall be reasonably satisfactory in form and substance to the Agents and such counsel, and the Agents and Administrative Agent's counsel shall have received all such counterpart originals or certified copies of such documents as the Agents or any Lender may reasonably request.
N. Lenders and their respective counsel shall have received originally executed copies of one or more written opinions of Xxxxx, Polk & Xxxxxxxx, special counsel for Company, in form and substance satisfactory to the Agents and their counsel, dated as of the Closing Date, and setting forth substantially the matters in the opinions designated in Exhibit V annexed hereto and as to such other matters as any Agent or any Lender may reasonably request, together with evidence satisfactory to Agents that Company has requested such counsel to deliver such opinions to Lenders.
O. Lenders and their respective counsel shall have received originally executed copies of one or more written opinions of the general counsel for Company and the Xxxx-Xxxxxx Subsidiaries or such other counsel as is satisfactory to the Agents, in form and substance satisfactory to the Agents and their counsel, dated as of the Closing Date, and setting forth substantially the matters in the opinions designated in Exhibit VI annexed hereto and as to such other matters as any Agent may reasonably request.
P. Lenders shall have received an originally executed copy of one or more written opinions of O'Melveny & Xxxxx LLP, counsel to Administrative Agent, dated as of the Closing Date, substantially in the form of Exhibit VII annexed hereto.
Q. On or before the making of the Loans, Company shall have delivered to Administrative Agent an Officers' Certificate, dated the Closing Date and addressed to the Agents and Lenders, in form and substance reasonably satisfactory to the Agents, to the effect that (i) the representations and warranties in Section 4 hereof pertaining to such Person are true, correct and complete in all material respects on and as of the Closing Date to the same extent as though made on and as of that date, (ii) since December 31, 1996 through the Closing Date there has been no material adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or of Company and its Subsidiaries taken as a whole (it being understood that the Armored Joint Venture shall not constitute such a material adverse change) and (iii) Company has performed all of its respective obligations required to be performed at or prior to such time in order to consummate the Refinancings and related transactions.
R. Each Loan Party shall have performed in all material respects all agreements which this Agreement provides shall be performed on or before the Closing Date except as otherwise disclosed to and agreed to in writing by the Agents.
S. Company shall have been taken or caused to be taken such actions in such a manner so that Collateral Agent, on behalf of Lenders, has a valid and perfected, first priority security interest in the entire Collateral (except to the extent any such security interest cannot be granted under applicable laws). Such actions shall include, without limitation: (1) the delivery pursuant to the applicable Pledge Agreement by Company and the Xxxx-Xxxxxx Guarantor Subsidiaries of certificates (which certificates shall be registered in the name of Collateral Agent or properly endorsed in blank for transfer or accompanied by irrevocable undated stock powers duly executed and delivered by the appropriate partiesendorsed in blank, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence that all of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) the insurance policies provided for in Section 3.16 shall be in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour of Xxxxxx as required under such Section;
(f) as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(g) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx shall have received opinions of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each Loan Document in form and substance satisfactory to Lender;Collateral Agent) representing all of the capital stock of the Xxxx-Xxxxxx Pledged Subsidiaries and of the Armored Joint Venture required to be pledged pursuant to the Pledge Agreements and (2) the delivery pursuant to the applicable Pledge Agreement of the evidences of indebtedness (which evidences of indebtedness shall be properly endorsed in blank or to Collateral Agent, in form and substance satisfactory to Collateral Agent) representing the intercompany debt obligations.
(i) Lender (and where applicable, Xxxxxx’s counsel) T. Company shall have completed delivered such other documents as the Agents may reasonably request. Each Lender hereby agrees that by its execution and delivery of its signature page hereto and by the funding of its Loans to be satisfied with made on the results Closing Date, such Lender approves of and consents to each of the matters set forth in this subsection 3.1 which must be approved by, or which must be satisfactory to, all businessor Requisite Lenders; provided that in the case of any agreement or document which must be approved by, environmental and legal due diligence (including review with results or which must be satisfactory to Lender of Borrower’s union contractsto, if applicable);
(j) Lender all or Requisite Lenders, Administrative Agent or Company shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable delivered a copy of such agreement or document to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) such Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) in substantially the Lender shall have received all fees and other amounts due and payable form in which such agreement or document is executed or delivered on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans Loans, or to take, fulfill, or perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence that satisfactory to it that:
(i) all of the obligations of the Credit Parties Borrower to Royal Bank of Canada Burniputra Malaysia Berhad under the Existing Credit Facility its financing documentation as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial Loans; and
(ii) all Liens upon any of the property of Borrower in favor of Bank Burniputra Malaysia Berhad shall have been terminated immediately upon such payment;
(c) Lender shall have received evidence satisfactory to R that Borrower has obtained all consents and shall acknowledgments of all Persons and Governmental Authorities whose consents or acknowledgments may be satisfied with required prior to the execution and delivery of this Agreement and the other Loan Documents (or pursuant to the terms hereof or thereof) and the consummation of the transactions contemplated hereby and thereby and that such estoppel letters, landlord waivers, mortgagee, processor consents or acknowledgments remain in full force and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretioneffect;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) evidence satisfactory to it that the insurance policies provided for in Section 3.16 shall be 3.17 are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fe) as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(g) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions an opinion of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) Borrower with respect to each the Loan Document Documents in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(qf) payment by Borrower of the Lender shall Closing Fee and all other fees, costs, and expenses payable by Borrower hereunder that have received all fees and other amounts due and payable on or prior to accrued as of the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans Loans, or to take, fulfill, or perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule F);
(b) Lender shall have received evidence satisfactory to it that each Credit Party has obtained all consents and acknowledgments of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately all Persons and Governmental Authorities whose consents or acknowledgments may be required prior to the Closing Date will be performed execution and paid delivery of this Agreement and the other Loan Documents (or pursuant to the terms hereof or thereof) and the consummation of the transactions contemplated hereby and thereby and that such consents or acknowledgments remain in full from the proceeds of the initial Loansforce and effect;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) evidence satisfactory to it that the insurance policies provided for in Section 3.16 shall be 3.17 are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fd) as of the Closing Date, Date Net Borrowing Availability shall be not less than $8,000,000 500,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations Advance (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(ge) if required pursuant Lender shall have received an opinion of counsel to Section 5.1(b), the Canadian Borrower with respect to the Loan Documents in form and substance satisfactory to Lender;
(f) Borrower shall have established a cash balance in management system which complies with Schedule D and is otherwise acceptable to Lender;
(g) payment by Borrower of that portion of the Reserve Account Closing Fee payable on the Closing Date and all other fees, costs, and expenses payable by Borrower hereunder that have accrued as of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease FacilityClosing Date;
(h) Xxxxxx Lender shall have received opinions of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction a lien subordination agreement executed by PIDC and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each Loan Document in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed received a Mortgage Waiver and be satisfied with the results of all business, environmental and legal due diligence Consent (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);Mortgage) executed by PIDA; and
(j) Lender shall have received a consent and be satisfied with the results ofacknowledgment agreement executed by Borrower and Eurand America, Xxxxxxxx’s field exam Inc. in form and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable substance satisfactory to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Global Pharmaceutical Corp \De\)
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule SCHEDULE F);
(b) Lender shall have received evidence that all of the obligations of the Credit Parties Borrowers to Royal Compass Bank of Canada under the Existing Credit Facility their financing documentation as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial LoansLoans and all Liens upon any of the property of any Borrower or any other Credit Party in respect thereof shall have been terminated immediately upon such payment;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) evidence satisfactory to it that the insurance policies provided for in Section 3.16 shall be are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fd) (i) as of the Closing Date, Date Net Borrowing Availability for all Borrowers combined shall be not less than $8,000,000 2,500,000 after giving effect to the initial Revolving Credit Advances Advance and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales); (ii) effective upon the granting of Lender's consent to the Treasury Stock Purchase (as defined in Schedule G hereto), Net Borrowing Availability for all Borrowers combined shall be not less than $2,000,000; and (iii) effective upon the granting of Lender's consent to the Target Acquisition (as defined in Schedule G hereto), Net Borrowing Availability for all Borrowers combined shall be not less than $1,000,000;
(ge) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions an opinion of counsel to each of the Borrowers and the other Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each the Loan Document Documents in substantially the form of Exhibit O to this Agreement and otherwise in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(jf) Lender shall have received a pro forma consolidated and be satisfied consolidating balance sheet of Parent and each of its Subsidiaries, as of the end of the month preceding the Closing Date, prepared in accordance with GAAP on a pro forma basis, setting forth the results ofassumptions on which such balance sheet was prepared, Xxxxxxxx’s field exam in each case giving effect to the consummation of the transactions contemplated by this Agreement and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxxthe other Loan Documents, and with regard to certified by the Collateral, the inventory control systems, the books and records and the reporting capability chief financial officer of the Credit Parties;; and
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(og) Lender shall have received satisfactory evidence that certain of the Indebtedness owing to Parent by some of the Borrowers or their respective Subsidiaries, as more particularly set forth and be satisfied with described on the Borrowers’ (ipro-forma balance sheet referred in Section 2.1(f) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheetthis Agreement, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior converted to additional equity of such Borrower or Subsidiary, as the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Documentcase may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Diversified Corporate Resources Inc)
Conditions to the Initial Loans. Lender shall not be obligated to make any of the Loans or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule SCHEDULE F);
(b) Lender shall have received evidence that all of the obligations of the Credit Parties Borrowers to Royal Xxxxx Fargo Bank of Canada N.A. under the Existing Credit Facility their financing documentation as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial LoansLoans and all Liens upon any of the property of any Borrower or any other Credit Party in respect thereof shall have been terminated immediately upon such payment;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) the insurance policies provided for in Section SECTION 3.16 shall be are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fd) as of the Closing Date, Net Borrowing Availability for all Borrowers combined shall be not less than $8,000,000 2,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(ge) if required pursuant Lender shall have received the Ex-Im Bank Guarantee duly executed by Ex-Im Bank on terms acceptable to Section 5.1(b)Lender, the Canadian together such waivers duly executed by Ex-Im Bank as Lender deems necessary in its sole discretion, and Leading Borrower shall have a cash balance entered into the Borrower Agreement (and consented to by each Other Borrower and each Guarantor) with Ex-Im Bank in accordance with the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;Ex-Im Bank Guarantee; and
(hf) Xxxxxx Lender shall have received opinions an opinion of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) Borrowers with respect to each the Loan Document Documents in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Ballantyne of Omaha Inc)
Conditions to the Initial Loans. Lender shall not be obligated to make consider Borrower's requests for any of the Loans Revolving Credit Advances or to perform any other action hereunder, until the following conditions have been satisfied in a manner satisfactory to Lender in its sole discretion, or waived in writing by XxxxxxLender:
(a) the Loan Documents to be delivered on or before the Closing Date shall have been duly executed and delivered by the appropriate parties, all as set forth in the Schedule of Documents (Schedule FE);
(b) the Closing Date shall occur on or before July 31, 2002;
(c) Lender shall have received written authorization to file financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements and that Lender has a first priority security interest in the Collateral;
(d) Lender shall have received a certificate from the Secretary of each Corporate Credit Party attesting to the resolutions of such Corporate Credit Party's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which it is a party and authorizing specific officers of such Corporate Credit Party to execute the same;
(e) Lender shall have received copies of each Corporate Credit Party's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Corporate Credit Party;
(f) Lender shall have received a certificate of status with respect to Borrower, dated within 14 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of each Corporate Credit Party, which certificate shall indicate that such Corporate Credit Party is in good standing in such jurisdiction;
(g) Lender shall have received certificates of status with respect to each Corporate Credit Party, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Corporate Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Corporate Credit Party is in good standing in such jurisdictions;
(h) Lender shall have received Collateral Access Agreements with respect to the locations of Borrower listed on Disclosure Schedule 3.2;
(i) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including payroll taxes) have been paid prior to delinquency;
(j) all other documents in connection with the transactions contemplated by this Agreement shall have been properly delivered, executed, or recorded and shall be in form and substance satisfactory to Lender;
(k) Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrower's books and records and verification of Borrower's representations and warranties to Lender, the results of which shall be satisfactory to Lender, and should Lender elect, (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender;
(l) Lender shall have received completed reference checks with respect to Borrower's senior management, the results of which are satisfactory to Lender in its sole discretion;
(m) Borrower shall pay all Lender Expenses incurred in connection with the transactions evidenced by this Agreement;
(n) all legal matters shall have been resolved to the satisfaction of Lender, in its discretion;
(o) all of the obligations of the Credit Parties Borrower to Royal Bank of Canada Foothill Capital Corporation under the Existing Credit Facility its financing documentation as in effect immediately prior to the Closing Date will be performed shall have been terminated and paid in full from the proceeds all Liens upon any of the initial Loansproperty of Borrower or any other Credit Party in respect thereof shall have been terminated;
(c) Lender shall have received and shall be satisfied with such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(ep) the insurance policies provided for in Section 3.16 shall be are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour favor of Xxxxxx Lender as required under such Section;
(fq) as of the Closing Date, Date Net Borrowing Availability shall be not less than $8,000,000 3,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations Advance (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);; and
(gr) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx Lender shall have received opinions an opinion of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) Borrower with respect to each the Loan Document Documents in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Lender shall have been provided with and be satisfied with its review of, each Credit Parties’ documents regarding its corporate and capital structure, Material Contracts, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
Appears in 1 contract
Samples: Loan and Security Agreement (3do Co)
Conditions to the Initial Loans. No Lender shall not be obligated to make any Loan to, or incur any Letter of Credit Obligations on the Loans Closing Date, or to take, fulfill or perform any other action hereunder, until the following conditions have been satisfied or provided for in a manner satisfactory to Lender in its sole discretionAgent, or waived in writing by XxxxxxAgent and Lenders:
(a) the Credit Agreement; Loan Documents to be delivered on This Agreement or before the Closing Date counterparts hereof shall have been duly executed by, and delivered to, each Credit Party, Agent and Lenders; and Agent shall have received such documents, instruments, agreements and legal opinions as Agent shall reasonably request in connection with the transactions contemplated by this Agreement and the appropriate partiesother Loan Documents, including all as set forth those listed in the Schedule of Documents (Schedule F);Closing Checklist attached hereto as Annex D, each in form and substance reasonably satisfactory to Agent.
(b) Lender Repayment of Prior Obligations; Satisfaction of Outstanding L/Cs
(i) Agent shall have received evidence fully executed originals of pay-off letters reasonably satisfactory to Agent confirming that all of the obligations of the Credit Parties to Royal Bank of Canada under the Existing Credit Facility as in effect immediately prior to the Closing Date Prior Obligations will be performed and paid repaid in full from the proceeds of the initial Loans;Revolving Credit Advance and all Liens upon any of the property of Borrowers or any of their Subsidiaries in favor of any Prior Lender shall be terminated by such Prior Lender immediately upon such payment; and
(cii) Lender shall have received and shall be satisfied with all letters of credit issued or guaranteed by such estoppel letters, landlord waivers, mortgagee, processor and bailee waivers and such other consents (including consents from Governmental Authorities) as Lender may require in its discretion;
(d) Lender shall have received and shall be satisfied with such subordination and intercreditor agreements as Lender may require in its discretion;
(e) the insurance policies provided for in Section 3.16 shall be in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favour of Xxxxxx as required under such Section;
(f) as of the Closing Date, Net Borrowing Availability shall be not less than $8,000,000 after giving effect to the initial Revolving Credit Advances and Letter of Credit Obligations (calculated on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales);
(g) if required pursuant to Section 5.1(b), the Canadian Borrower shall have a cash balance in the Reserve Account of no less than the amount necessary to satisfy 1 years worth of lease payments required under the RBC Lease Facility;
(h) Xxxxxx shall have received opinions of counsel to each of the Credit Parties (including opinions relating to enforceability, the Lender’s security in each relevant jurisdiction and such other matters as the Lender reasonably considers necessary in its discretion) with respect to each Loan Document in form and substance satisfactory to Lender;
(i) Lender (and where applicable, Xxxxxx’s counsel) shall have completed and be satisfied with the results of all business, environmental and legal due diligence (including review with results satisfactory to Lender of Borrower’s union contracts, if applicable);
(j) Lender shall have received and be satisfied with the results of, Xxxxxxxx’s field exam and inventory appraisal (which shall be current within 3 months) conducted by an appraisal firm acceptable to Xxxxxx, and with regard to the Collateral, the inventory control systems, the books and records and the reporting capability of the Credit Parties;
(k) Prior Lender shall have been provided with and be satisfied with its review ofterminated, each cash collateralized, supported by a guaranty of Agent or supported by a Letter of Credit Parties’ documents regarding its corporate and capital structureissued pursuant to Annex B, Material Contractsas mutually agreed upon by Agent, debt instruments and governing documents;
(l) Lender shall have reviewed and be satisfied with Credit Parties’ customers’ contracts (including distribution agreements, licence agreements and supply agreements) and, if requested by Lender, the purchase orders relating thereto;
(m) Lender shall have completed and be satisfied with the results of the background and reference checks on Borrower, senior management of Borrowers and the other Credit Parties and shall have received all documentation and other information required by regulatory and governmental authorities under applicable “know-your-customer”, sanctions and anti-money laundering rules and regulations;
(n) Lender shall have received, and same shall continue to be valid and current, certified copies of all the constating documents, by-laws and resolutions of the directors (or partners, members or shareholders as required by Xxxxxx) authorizing the Loan Documents, and certificates of incumbency, for Borrowers and each other Credit Party;
(o) Lender shall have received and be satisfied with the Borrowers’ (i) most recent individual and consolidated Projections for the 24 months following the Closing Date (including projections of balance sheet, operating results, cash flows, Capital Expenditures and Net Borrowing Availability), and (ii) updated aged accounts receivable listing (supported by detailed rebates payable), aged accounts payable listing and detailed inventory listing;
(p) a Compliance Certificate shall have been submitted prior to the Closing Date confirming all required covenants have been met; and
(q) the Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, reimbursement or payment of all for all costs and expenses (including the fees and expenses of all counsel, advisors, consultants (including environmental and management consultants), field examiners, appraisers required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Documentsuch Prior Lender.
Appears in 1 contract
Samples: Credit Agreement (H&e Finance Corp)
