First Loan. In addition to the matters described in Section 3.1 hereof, the obligation of any Lender to make the initial Loan on the date thereof (the “Effective Date”) is subject to the satisfaction of the following conditions precedent: (a) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in Proper Form and (except for the Notes) in sufficient copies for each Lender: i. Counterparts to this Agreement executed by the Company and each Lender; ii. The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms hereof; iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date; iv. Certified copies of the resolutions of the board of directors (or equivalent body) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party. v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto. vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein. vii. A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation. viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. ix. A certificate, in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer. x. Audited annual financial statements of the Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management of the Company, each in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date. xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders. (b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target. (c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated. (d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full. (e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions. (f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect. (g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
First Loan. In addition the case of the first Loan, to the matters described in Section 3.1 hereofextent not previously delivered to the Bank, the obligation of any Lender to make the initial Loan on the date thereof (the “Effective Date”) is subject to the satisfaction of the following conditions precedentBank, in connection with the Previous Credit Agreement:
(ai) The Agent shall have received receipt by the Bank of a duly executed Note, dated on or before the Effective Date date of such Loan, complying with the followingprovisions of Section 2.4;
(ii) all legal matters incident to this Agreement, the Note and the Collateral Documents and the transactions contemplated hereby and thereby shall be reasonably satisfactory to Xxxxxxxx Xxxxxxx LLP, counsel for the Bank;
(iii) receipt by the Bank of (A) a copy of each Borrower’s certificate of incorporation, as amended, certified by the appropriate office of the state of its incorporation; (B) a certificate of such office, dated such day (unless otherwise specified)as of a recent date, in Proper Form as to the good standing and charter documents of said Borrower on file; and (except for the NotesC) in sufficient copies for each Lender:
i. Counterparts to this Agreement executed by the Company and each Lender;
ii. The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. Certified copies of the resolutions of the board of directors (or equivalent body) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary or an Assistant Secretary of State said Borrower dated the date of such Loan and certifying (1) that the jurisdiction certificate of incorporation of each Loan Party, dated reasonably near said Borrower has not been amended since the Effective Date certifying (A) as to a true and correct copy date of the charter of such Loan Party and each last amendment thereto indicated on file in such Secretary’s office and the certificate furnished pursuant to clause (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s officeabove, (2) as to the absence of dissolution or liquidation proceedings by or against said Borrower, (3) that attached thereto is a true and complete copy of the by-laws of said Borrower as in effect on the date of such Loan Party has paid all franchise taxes certification, (4) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of said Borrower authorizing the execution, delivery and performance of this Agreement, the Note and the Collateral Documents to which said Borrower is a party and that said resolutions have not been amended and are in full force and effect on the date of such certificate and (35) such Loan Party as to the incumbency and specimen signatures of each officer of said Borrower executing this Agreement, the Note and any other Collateral Documents to which it is duly incorporated and a party, or any other document delivered in good standing connection herewith or presently subsisting therewith;
(iv) receipt by the Bank of executed copies of the Collateral Documents granting to the Bank a first Lien in all the Collateral described therein, subject to Permitted Liens;
(v) receipt by the Bank of certificates representing the shares of stock pledged under the laws of Pledge Agreement, duly indorsed in blank or accompanied by stock powers duly executed in blank (Bank agrees to provide the State of the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretaryBorrowers with written confirmation, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on delivered promptly after the Effective Date, of the foregoing certificates that the Bank has in its possession);
(Cvi) receipt by the absence Bank of any proceeding an opinion of Xxxx and Xxxx, LLP, counsel for the dissolution Borrowers, substantially in the form of Exhibit E to the Previous Credit Agreement and covering such additional matters relating to the transactions contemplated hereby as the Bank may reasonably request;
(vii) on or liquidation prior to the date of such Loan PartyLoan, each document (Dincluding, without limitation, each Uniform Commercial Code financing statement, but excluding filings with the U.S. Patent and Trademark Office or the Register of Copyrights) required by law or reasonably requested by the truth Bank to be filed, registered or recorded with a governmental authority in all material respects order to create in favor of the representations and warranties contained Bank a perfected first priority security interest in the Loan Documents Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and the Bank shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation;
(viii) receipt by the Bank of certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing the financing statements referred to in clause (vii) above and all other effective financing statements that name each Borrower (under its present names and any previous names) as though made on debtors or sellers and that are filed in the jurisdictions referred to in clause (vii) above, together with copies of such other financing statements (none of which shall cover the Collateral, except as otherwise disclosed in writing to, and accepted by, the Bank, and Permitted Liens);
(ix) receipt by the Bank of evidence of the Effective Dateinsurance required by the Collateral Documents;
(x) receipt by the Bank of a certificate signed by the chief financial officer, (E) the absence of any event occurring and continuingtreasurer, or resulting from president of each Borrower, to the initial Borrowing hereunder, that constitutes a Default, effect set forth in clauses (ii) and (Fiii) certifying of Section 3.1; and
(xi) receipt by the names Bank of all documents it may reasonably request relating to the existence of each Borrower and true signatures of its corporate authority to execute, deliver and perform this Agreement, the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party Note and the Collateral Documents and the validity of this Agreement, the Note and the Collateral Documents and any other documents to be delivered hereunder and thereunder.
ix. A certificatematters relevant hereto or thereto, all in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officerBank.
x. Audited annual financial statements of the Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management of the Company, each in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
First Loan. In addition to the matters described in Section 3.1 5.1 hereof, the obligation of any the Lender to make the initial Revolving Loan on or the date thereof (obligation of the “Effective Date”) Lender to issue the first Letter of Credit is subject to the satisfaction receipt by the Lender of each of the following conditions precedentfollowing, in Proper Form:
(a) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in Proper Form and (except for the Notes) in sufficient copies for each Lender:
i. Counterparts to this Agreement , executed by the Company Borrower and each LenderUltimate Parent, as applicable;
ii. The Notes payable to (b) the order Security Documents executed by the Borrower;
(c) a certificate executed by the General Partner of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor Borrower dated as of the Effective Datedate thereof, substantially in the form attached hereto as Exhibit G;
iv. Certified (d) certified copies of the resolutions Organizational Documents of the board of directors Borrower;
(or equivalent bodye) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of from the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws other appropriate public official of the State of Delaware as to the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as continued existence of the Effective Borrower in the State of Delaware;
(f) certificates from the appropriate public officials of Texas and Delaware as to the existence, good standing and qualification as a foreign limited partnership (as may be appropriate) of the Borrower in such jurisdictions;
(g) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date well as a current Borrowing Base Certificate executed by a Responsible Officer of the Secretary of State’s certificate referred to General Partner in Section 3.2(a)(v), the form attached hereto as Exhibit H;
(Bi) a true and correct copy of the bylaws field examination, including a takeover field examination, of the Borrower's books and records and the results of such Loan Party as in effect on field examination;
(j) evidence that the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective DateBorrower has [$700,000] or more of Availability, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
ix. A certificate, in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the TransactionsRevolving Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to the Lender), from its chief financial officer.
x. Audited annual financial statements dated as of the Company Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Target for Security Documents;
(m) the three fiscal years most recently ended Borrower and interim financial statements for the fiscal quarters ended thereafter Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and prior supplier contracts with respect to the Effective Date Borrower;
(o) copies of all employment agreements, management fee agreements and for tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the most recent quarter for which financial statements are availableBorrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, pro forma financial statements as notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Company Lender that there has been no material adverse change in the business, assets, operations, or financial condition of Tidel Engineering, Inc. between February 28, 1999 and its Subsidiaries giving effect the merger of Tidel Engineering, Inc. into Borrower;
(t) an executed disbursement authorization letter from the Borrower to the Transactions, and forecasts prepared by management Lender with respect to the disbursement of the Companyproceeds of the Loans and the issuance of the Letters of Credit, each in form if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and substance any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at the time of the initial Loan, (1) the ownership, partnership structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the LendersLender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of balance sheetsaccount and other records and files of the Borrower and to make copies hereof, income statements and cash flow statements on to conduct a pre-closing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an annual basis for each year following opening Borrowing Base as of the Effective Closing Date until (with the Termination Date.
xi. A favorable opinion results of counsel such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the Loan Partiespurpose of perfecting such Liens, in form and substance with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Lenders.
Liens created by the Security Documents constitute first priority Liens (bexcept for any Liens expressly provided for in Section 8.2 below); (5) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company Borrower shall have paid all accrued fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses of the Agent that are due described in Section 10.9 or otherwise and payable in accordance herewith (including the accrued fees and expenses of counsel 6) all other legal matters incident to the Agent and fees due and payable transactions herein contemplated shall be reasonably satisfactory to counsel for the Joint Lead Arrangers pursuant to the Fee Letter)Lender.
Appears in 1 contract
First Loan. In addition As conditions precedent to the matters described in Section 3.1 hereof, the Lender's obligation of any Lender to make the initial first Loan on the date thereof (the “Effective Date”) is subject to the satisfaction of the following conditions precedenthereunder:
(a1) The Agent Companies shall have received on or before delivered to the Effective Date Lender, in form and substance satisfactory to the Lender and its counsel, each of the following:
(i) A duly executed copy of this Agreement;
(ii) A duly executed copy of the Security Agreement and of the Guaranty;
(iii) A duly executed copy of the Note;
(iv) Duly executed copies of all financing statements and other documents, each dated such day (unless otherwise specified)instruments and agreements, properly executed, deemed necessary or appropriate by the Lender, in Proper Form and (except its reasonable discretion, to obtain for the Notes) Lender a perfected, first priority security interest in sufficient copies for each Lender:
i. Counterparts to this Agreement executed by and lien upon the Company and each LenderCollateral;
ii. The Notes payable to (v) Such credit applications, financial statements, authorizations and such information concerning the order of Companies and their respective businesses, operations and conditions (financial and otherwise) as the Lenders to the extent requested by the Lenders pursuant to the terms hereofLender may reasonably request;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. (vi) Certified copies of the resolutions of the board Board of directors (or equivalent body) Directors of each Loan Party of the Companies and of NFI Holding approving the Transaction execution and each Loan Document delivery of the Credit Documents to which it such Company or NFI Holding, as applicable, is or is to be a party., the performance of the Obligations thereunder and the consummation of the transactions contemplated thereby;
v. a security agreement in substantially the form of Exhibit G-(vii) A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary or an Assistant Secretary of State each of the jurisdiction Companies and of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) NFI Holding certifying the names and true signatures of the officers of such Loan Party Company or NFI Holding, as applicable, authorized to sign each Loan Document execute and deliver the Credit Documents to which it such Company or NFI Holding, as applicable, is or is to be a party and the other documents to be delivered hereunder and thereunder.party;
ix. (viii) A certificate, in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency copy of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer.
x. Audited annual financial statements Articles of Incorporation of each of the Companies and of NFI Holding, certified by the respective Secretary or an Assistant Secretary of such Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are availableor NFI Holding, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactionsapplicable, and forecasts prepared by management as of the Companydate of this Agreement as being accurate and complete;
(ix) A copy of the Bylaws of each of the Companies and of NFI Holding, each certified by the respective Secretary or an Assistant Secretary of such Company or NFI Holding, as applicable, as of the date of this Agreement as being accurate and complete;
(A) A certificate of the Secretary of State of the Commonwealth of Virginia, certifying as of a recent date that NovaStar Mortgage is in form good standing and substance reasonably satisfactory to (B) a certificate of the LendersSecretary of State of the State of California certifying as of a recent date that NovaStar Mortgage is in good standing as a foreign corporation in such jurisdiction;
(A) A certificate of the Secretary of State of the State of Maryland, certifying as of balance sheetsa recent date that NovaStar Financial is in good standing and (B) a certificate of the Secretary of State of the State of Kansas certifying as of a recent date that NovaStar Financial is in good standing as a foreign corporation in such jurisdiction;
(xii) A certificate of the Secretary of State of the State of Delaware, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.certifying as of a recent date that NFI Holding is in good standing;
xi. A favorable (xiii) An opinion of counsel for the Companies and NFI Holding substantially in the form of Exhibit D attached hereto and covering such other matters as the Lender may reasonably request;
(xiv) Evidence satisfactory to the Lender that each of the Funding Account and the Settlement Account has been opened;
(xv) A schedule of the initial Approved Investors duly approved by the Lender;
(xvi) A duly completed Borrowing Base Schedule dated as of the date of the first Loan Partieshereunder and certified by the Companies to be true in all respects; and
(xvii) A Covenant Compliance Certificate demonstrating in detail satisfactory to the Lender that the Companies are in compliance with the covenants set forth in Paragraphs 7(h) and 7(i) below.
(2) All acts and conditions (including, without limitation, the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the execution, delivery and performance of the Credit Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, including, without limitation, documentation for corporate and legal proceedings in connection with the transactions contemplated by the Credit Documents shall be satisfactory in form and substance reasonably satisfactory to the LendersLender and its counsel.
(b4) The Tender Offer shall have been consummated, All fees required to be paid on or shall be consummated substantially concurrently with before the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, date hereof pursuant to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(cParagraph 2(l) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, above shall have been paid in full.
prior to (eor will be paid concurrently with) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge making of the first Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactionshereunder.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
Samples: Mortgage Loan Warehousing Agreement (Novastar Financial Inc)
First Loan. (a) In addition the case of the first Loan proposed to be made hereunder to the matters described in Section 3.1 hereof, the obligation of any Lender to make the initial Loan on the date thereof (the “Effective Date”) is subject to the satisfaction of the following conditions precedentBorrower:
(ai) The Agent the Bank shall have received on an opinion of counsel to the Borrower and the Guarantor (which counsel may be an employee of the Borrower or before the Effective Date Guarantor) addressed to the followingBank and in form satisfactory to the Bank in its reasonable judgment, each dated such day (unless otherwise specified), in Proper Form and (except for to the Notes) in sufficient copies for each Lendereffect that:
i. Counterparts to this Agreement executed by the Company and each Lender;
ii. The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. Certified copies of the resolutions of the board of directors (or equivalent body) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy each of the charter of such Loan Party Borrower and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party Guarantor has paid all franchise taxes to the date of such certificate and (3) such Loan Party is been duly incorporated and is validly existing as a corporation in good standing or presently subsisting under the laws of the State of Delaware, with corporate power under the laws of such State to enter into this Agreement, to borrow money as contemplated by this Agreement and deliver the Note (in the case of the Borrower), to extend the Guarantee (in the case of the Guarantor), and to carry out the provisions of this Agreement and (in the case of the Borrower) the Note;
(B) this Agreement has been duly authorized, executed and delivered by each of the Borrower and the Guarantor and, assuming due authorization, execution and delivery hereof by the Bank, is a valid and binding agreement of each of the Borrower and the Guarantor enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles regardless of whether such enforceability is considered in a proceeding in equity or at law;
(C) the Note has been duly authorized by the Borrower, and when duly executed and delivered by the Borrower, will be a valid and binding obligation of the Borrower enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles regardless of whether such enforceability is considered in a proceeding in equity or at law;
(D) the execution, delivery and performance by each of the Borrower and the Guarantor of this Agreement and (in the case of the Borrower) the Note will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to the Borrower or the Guarantor, as the case may be, and its subsidiaries considered as a whole), or result in the creation or imposition of any lien, charge or encumbrance (in each case material to the Borrower or the Guarantor, as the case may be, and its subsidiaries considered as a whole) upon any of the property or assets of the Borrower or the Guarantor, as the case may be, pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or other similar agreement or instrument known to such counsel under which the Borrower or the Guarantor, as the case may be, is a debtor or a guarantor, nor will such action result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Borrower or the Guarantor, as the case may be; and
(E) there is no consent, approval, authorization, order, registration or qualification of or with any governmental authority having jurisdiction over the Borrower or the Guarantor which is required for, and the absence of its incorporation.which would materially affect, the execution, delivery and performance of this Agreement or (in the case of the Borrower) the Note;
viii. A (ii) the Bank shall have received a certificate of the Secretary or the Assistant Secretary of each Loan Party signed of the Borrower and the Guarantor setting forth the resolutions of the Board of Directors authorizing this Agreement and certifying that the persons signing this Agreement on behalf of the Borrower and the Guarantor are duly elected and qualified officers (indicating the offices held) of the Borrower or the Guarantor, as the case may be, with the authority to sign this Agreement on behalf of the Borrower or the Guarantor, as the case may be, and setting forth the signatures of such Loan Party by its secretary or any assistant secretaryofficers; and
(iii) the Bank shall have received a certificate of good standing of the Borrower from the State of Delaware and certificates of good standing of the Guarantor from the States of Delaware, dated the Effective Date (the statements made Michigan, New York and Ohio. The documents referred to in which certificate this Section 4.2 shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments delivered to the charter of such Loan Party since Bank no later than two LIBOR Business Days prior to the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such first Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
ix. A certificate, in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer.
x. Audited annual financial statements of the Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management of the Company, each in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
First Loan. In addition to the matters described in Section 3.1 hereof, the obligation of any Lender to make the initial Loan on the date thereof (the “Effective Date”) is subject to the satisfaction case of the following conditions precedentfirst Loan:
(ai) The Agent shall have received receipt by the Bank of a duly executed Note, dated on or before the Effective Date date of such Loan, complying with the followingprovisions of Section 2.4;
(ii) all legal matters incident to this Agreement, the Note and the Collateral Documents and the transactions contemplated hereby and thereby shall be reasonably satisfactory to Xxxxxxxx Xxxxxxx LLP, counsel for the Bank;
(iii) receipt by the Bank of (A) a copy of each Borrower's certificate of incorporation, as amended, certified by the appropriate office of the state of its incorporation; (B) a certificate of such office, dated such day (unless otherwise specified)as of a recent date, in Proper Form as to the good standing and charter documents of said Borrower on file; and (except for the NotesC) in sufficient copies for each Lender:
i. Counterparts to this Agreement executed by the Company and each Lender;
ii. The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. Certified copies of the resolutions of the board of directors (or equivalent body) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary or an Assistant Secretary of State said Borrower dated the date of such Loan and certifying (1) that the jurisdiction certificate of incorporation of each Loan Party, dated reasonably near said Borrower has not been amended since the Effective Date certifying (A) as to a true and correct copy date of the charter of such Loan Party and each last amendment thereto indicated on file in such Secretary’s office and the certificate furnished pursuant to clause (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s officeabove, (2) as to the absence of dissolution or liquidation proceedings by or against said Borrower, (3) that attached thereto is a true and complete copy of the by-laws of said Borrower as in effect on the date of such Loan Party has paid all franchise taxes certification, (4) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of said Borrower authorizing the execution, delivery and performance of this Agreement, the Note and the Collateral Documents to which said Borrower is a party and that said resolutions have not been amended and are in full force and effect on the date of such certificate and (35) such Loan Party is duly incorporated as to the incumbency and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
viii. A certificate specimen signatures of each Loan Party signed on behalf officer of such Loan Party by its secretary or said Borrower executing this Agreement, the Note and any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan other Collateral Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party, or is any other document delivered in connection herewith or therewith;
(iv) receipt by the Bank of executed copies of the Collateral Documents granting to the Bank a first Lien in all the Collateral described therein, subject to Permitted Liens;
(v) receipt by the Bank of certificates representing the shares of stock pledged under the Pledge Agreement, duly indorsed in blank or accompanied by stock powers duly executed in blank;
(vi) receipt by the Bank of an opinion of Xxxx and Xxxx, LLP, counsel for the Borrowers, substantially in the form of Exhibit E hereto and covering such additional matters relating to the transactions contemplated hereby as the Bank may reasonably request;
(vii) on or prior to the date of such Loan, each document (including, without limitation, each Uniform Commercial Code financing statement, but excluding filings with the U.S. Patent and Trademark Office or the Register of Copyrights) required by law or reasonably requested by the Bank to be filed, registered or recorded with a party governmental authority in order to create in favor of the Bank a perfected first priority security interest in the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and the Bank shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation;
(viii) receipt by the Bank of certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing the financing statements referred to in clause (vii) above and all other effective financing statements that name each Borrower (under its present names and any previous names) as debtors or sellers and that are filed in the jurisdictions referred to in clause (vii) above, together with copies of such other financing statements (none of which shall cover the Collateral, except as otherwise disclosed in writing to, and accepted by, the Bank, and Permitted Liens);
(ix) receipt by the Bank of evidence of the insurance required by the Collateral Documents;
(x) receipt by the Bank of a certificate signed by the chief financial officer, treasurer, or president of each Borrower, to the effect set forth in clauses (ii) and (iii) of Section 3.1; and
(xi) receipt by the Bank of all documents it may reasonably request relating to be delivered hereunder the existence of each Borrower and thereunder.
ix. A certificateits corporate authority to execute, deliver and perform this Agreement, the Note and the Collateral Documents and the validity of this Agreement, the Note and the Collateral Documents and any other matters relevant hereto or thereto, all in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officerBank.
x. Audited annual financial statements of the Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management of the Company, each in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
First Loan. In addition to the matters described in Section 3.1 hereof, the The obligation of any each Lender to make the its initial Loan on the date thereof (the “Effective Date”) hereunder is subject to the satisfaction of the following conditions precedent:
(a1) The Agent shall have received on or before the Effective Date Administrative Agent's receipt of the following, each dated such day of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified), in Proper Form and (except for the Notes) in sufficient copies for each Lender:
i. Counterparts to this Agreement properly executed by the Company and each Lender;
ii. The Notes payable to the order a Responsible Officer of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. Certified copies of the resolutions of the board of directors (or equivalent body) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each signing Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (or, in the statements made in which certificate shall be true on and as case of certificates of governmental officials, a recent date before the Effective Date), certifying as to (A) the absence of any amendments and each in form and substance satisfactory to the charter Administrative Agent:
(i) A duly executed copy of such this Agreement;
(ii) A duly executed copy of the Security Agreement;
(iii) A duly executed copy of the Guaranty;
(iv) Duly executed originals of each of the Notes;
(v) All financing statements and other documents, instruments and agreements, properly executed, as appropriate, deemed necessary or appropriate by the Administrative Agent, in its reasonable discretion, to create in favor of the Collateral Agent for the pro rata, pari passu benefit of the Lenders a first priority perfected security interest in and lien upon the Collateral;
(vi) Certified copies of resolutions of the Board of Directors of each of the Loan Party since Parties approving the date execution and delivery of the Loan Documents to which it is a party, the performance of the Obligations and the consummation of the transactions contemplated thereby;
(vii) A certificate of the Secretary or an Assistant Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy each of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) Parties certifying the names and true signatures of the officers of such Loan Party authorized to sign each execute the Loan Document Documents to which it is a party;
(viii) A copy of the Articles or Certificate of Incorporation of each of the Loan Parties, certified by the Secretary of State of the state of its incorporation as of a recent date;
(ix) A copy of the Bylaws of each of the Loan Parties, certified by the Secretary or an Assistant Secretary of such Loan Party as of the date of this Agreement as being accurate and complete;
(x) A certificate of the appropriate Governmental Authority of each state in which each of the Loan Parties is required to be authorized to do business to the effect that such Loan Party is so qualified and in good standing as of a party recent date;
(xi) A certificate executed by a duly authorized officer of each of the Loan Parties in the form of that attached hereto as Exhibit D dated as of the date of this Agreement;
(xii) A certificate of a Responsible Financial Officer of each of the Loan Parties, demonstrating in detail satisfactory to the Administrative Agent such Loan Party's compliance with the financial covenants set forth in Paragraphs 11(h), (i), (j) and (k) below at and as of June 30, 2004;
(xiii) Evidence satisfactory to the other documents to be delivered Administrative Agent that concurrently with the first Loan hereunder the Existing Credit Agreement is being terminated, all amounts due and thereunder.owing thereunder or in connection therewith are being paid in full and all liens and security interests created thereunder or pursuant thereto are being released and discharged;
ix. A certificate, (xiv) Evidence in form and substance reasonably satisfactory to the LendersAdministrative Agent that AHMH is a MERS Member and that the Borrowers, attesting as affiliates of AHMH, have been approved by MERS as authorized users of the MERS System pursuant to the Solvency membership of AHMH;
(xv) A duly executed copy of the Company Electronic Tracking Agreement;
(xvi) A certified corporate resolution adopted by board of directors of MERS appointing agents of AHMH to execute and its Subsidiaries, deliver assignments of deeds of trust or mortgages on a consolidated basis, both before behalf of MERS;
(xvii) Such executed blank assignments of deeds of trust and after giving effect mortgages as the Administrative Agent may request;
(xviii) Evidence satisfactory to the Transactions, from its chief financial officer.
x. Audited annual financial statements Administrative Agent of the Company payment of any fees required to be paid by the Borrowers hereunder or under the Fee Letter on or before the date hereof;
(xix) An opinion of counsel to the Loan Parties with respect to such matters as the Administrative Agent may request;
(xx) Evidence satisfactory to the Administrative Agent that each of the Funding Account and the Target for Settlement Account has been opened;
(xxi) A duly completed and executed Borrowing Base Certificate dated as of the three fiscal years most recently ended and interim financial statements for date of the fiscal quarters ended thereafter and first loan hereunder;
(xxii) An Appraisal of the Eligible Servicing Portfolio dated not more than thirty days prior to the Effective Date date of the first Loan hereunder;
(xxiii) Copies of all policies and for the most recent quarter for which financial statements are available, pro forma financial statements as procedures related to the Company Borrowers' Hedging Arrangements;
(xxiv) Copies of all current underwriting and its Subsidiaries giving effect servicing guidelines and procedures; and
(xxv) Such other documents, instruments, agreements, certificates and evidences as the Administrative Agent may reasonably request.
(2) All acts and conditions precedent (including, without limitation, the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the Transactionsexecution, delivery and forecasts prepared by management performance of the CompanyLoan Documents and to constitute the same legal, each valid and binding obligations of the Loan Parties, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, including, without limitation, documentation for corporate and legal proceedings in connection with the transactions contemplated by the Loan Documents, shall be satisfactory in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements Administrative Agent and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b4) The Tender Offer Since December 31, 2003, there shall not have been consummatedoccurred a material adverse change in the business, assets, liabilities (actual or contingent), operations, financial condition, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge business prospects of the Loan Parties or any taken as a whole. Without limiting the generality of their Subsidiariesthe provisions of Paragraph 13(d), threatened before any Governmental Authority for purposes of determining compliance with the conditions specified in this Paragraph 8(a), each Lender that has had or could reasonably signed this Agreement shall be expected deemed to have a Material Adverse Effect on the legalityconsented to, validity approved, or enforceability of any Loan Document accepted or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Merger Agreement in connection with the Transactions Administrative Agent shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel received notice from such Lender prior to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter)proposed Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (American Home Mortgage Investment Corp)
First Loan. In addition to the matters described in Section 3.1 hereof, the obligation of any Lender to make the initial Loan on the date thereof (the “"Effective Date”") is subject to the satisfaction of the following conditions precedent:
(a) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in Proper Form and (except for the Notes) in sufficient copies for each Lender:
i. Counterparts to this Agreement executed by the Company and each Lender;
ii. The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. Certified copies of the resolutions of the board of directors (or equivalent body) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s 's office and (B) that (1) such amendments are the only amendments to such Loan Party’s 's charter on file in such Secretary’s 's office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
ix. A certificate, in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer.
x. Audited annual financial statements of the Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management of the Company, each in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s 's existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s 's existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
First Loan. In addition to the matters described in Section 3.1 hereof, the obligation of any Lender Bank to make the initial Loan on or issue the date thereof (the “Effective Date”) first Letter of Credit is subject to the satisfaction receipt by the Agent of each of the following conditions precedentfollowing, in Proper Form:
(a) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in Proper Form and (except for the Notes) in sufficient copies for each Lender:
i. Counterparts to this Agreement , executed by the Company;
(b) an Officer's Certificate, executed by the chief executive officer, president, chief operating officer or chief financial officer of the Company and each Lenderdated as of the date of this Agreement;
ii. The Notes payable to (c) a certificate executed by the order secretary or assistant secretary of the Lenders to Company dated as of the extent requested by date thereof, substantially in the Lenders pursuant to the terms hereofform attached hereto as Exhibit F;
iii. The (d) a Guaranty and the Contribution Agreement duly (or if applicable, a Joinder Agreement), each executed and delivered by each Guarantor as of the Effective DateCurrent Guarantors;
iv. Certified copies of the resolutions of the board of directors (or equivalent bodye) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and certificates executed by the parties thereto.secretary or assistant secretary of each of the Current Guarantors, substantially in the form attached hereto as Exhibit G;
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of (f) a certificate of from the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws other appropriate public official of the State of Texas as to the jurisdiction continued existence of its incorporation.the Company in the State of Texas;
viii. A (g) a certificate from the Office of the Comptroller of the State of Texas as to the good standing of the Company in the State of Texas;
(h) with respect to each Loan Party signed on behalf Current Guarantor, certificates from the appropriate public officials of the state of incorporation of such Loan Party by Current Guarantor and of those jurisdictions where the nature of such Current Guarantor's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of such Current Guarantor in such jurisdictions;
(i) a legal opinion from Xxxxxx & Xxxxxxx, L.L.P., the independent counsel for the Company and the Current Guarantors, acceptable to the Agent in its secretary or any assistant secretarysole and absolute discretion; and to the further condition that, dated at the Effective Date (time of the statements made in which certificate initial Loan, all legal matters incident to the transactions herein contemplated shall be true on satisfactory to counsel for the Agent and respective counsel for each of the Banks;
(j) any and all existing Indebtedness of the Company which is outstanding under the Company's discretionary line of credit with Chase shall be simultaneously paid in full at the time of the initial Loan; and
(k) the Company shall pay all closing, structuring and other invoiced fees owed as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred initial Loan to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party Agent and the other documents to be delivered hereunder and thereunder.
ix. A certificate, in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency of Banks by the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer.
x. Audited annual financial statements of under this Agreement or any other written agreement between the Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management of the Company, each in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document Agent or the consummation of the Transactionsapplicable Bank.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
First Loan. In addition As conditions precedent to the matters described in Section 3.1 hereof, the any Lender's obligation of any Lender to make the initial first Loan on the date thereof hereunder:
(the “Effective Date”1) is subject The Company shall have delivered, or shall have caused to be delivered, to the satisfaction Administrative Agent, in form and substance satisfactory to the Administrative Agent and its counsel, each of the following conditions precedent:
(a) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in Proper Form and (except for the Notes) in with sufficient copies for each Lender:of the Lenders):
i. Counterparts (i) A duly executed copy of this Agreement;
(ii) A duly executed copy of the Security Agreement, of each of the Guaranties and of the Subordination Agreement;
(iii) Duly executed copies of each of the Notes;
(iv) Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the Administrative Agent, in its reasonable discretion, to this Agreement executed by obtain for the Administrative Agent on behalf of the Lenders a perfected, first priority security interest in and lien upon the Collateral;
(v) Such credit applications, financial statements, authorizations and such information concerning the Company or either of the Guarantors or the business, operations and conditions (financial and otherwise) of the Company or either of the Guarantors as any Lender may reasonably request;
(vi) Certified copies of resolutions of the Board of Directors of each of the Company and each Lenderthe Guarantors approving the execution and delivery of the Credit Documents to which such Person is a party, the performance of the Obligations and any other obligations thereunder and the consummation of the transactions contemplated thereby;
ii. The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. Certified copies of the resolutions of the board of directors (or equivalent bodyvii) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary or an Assistant Secretary of State each of the jurisdiction of incorporation of each Loan Party, dated reasonably near Company and the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) Guarantors certifying the names and true signatures of the officers of such Loan Party Person authorized to sign each Loan Document execute and deliver the Credit Documents to which it such Person is or is to be a party and the other documents to be delivered hereunder and thereunder.party;
ix. (viii) A certificate, in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency copy of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer.
x. Audited annual financial statements Articles of Incorporation of each of the Company and the Target for Guarantors, certified by the three fiscal years most recently ended respective Secretary or an Assistant Secretary of such Person as of the date of this Agreement as being accurate and interim financial statements for complete;
(ix) A copy of the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to Bylaws of each of the Company and its Subsidiaries giving effect to the TransactionsGuarantors, and forecasts prepared certified by management the respective Secretary or an Assistant Secretary of such Person as of the Companydate of this Agreement as being accurate and complete;
(x) A certificate (A) of the Secretary of State of the State of South Carolina, each certifying as of a recent date that the Company is in form good standing; (B) of the Secretary of State of the State of South Carolina, certifying as of a recent date that EGI is in good standing; and substance reasonably satisfactory to (C) of the LendersSecretary of State of the State of South Carolina, certifying as of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.a recent date that Sterling is in good standing;
(xi. A favorable ) An opinion of counsel for the Company and the Guarantors substantially in the form of Exhibit D attached hereto and covering such other matters as the Administrative Agent may reasonably request;
(xii) Evidence satisfactory to the Administrative Agent that each of the Funding Account and the Settlement Account has been opened;
(xiii) A duly completed Borrowing Base Schedule dated as of the date of the first Loan Partieshereunder and certified by the Company to be true in all respects;
(xiv) A Covenant Compliance Certificate demonstrating in detail satisfactory to the Administrative Agent and the Lenders that (A) the Company is in compliance with the covenants set forth in Paragraphs 7(j) and 7(k) below, and (B) EGI is in compliance with the covenants set forth in Paragraphs 11(l) and 11(m) of the Parent Guaranty; and
(xv) A written selection by the Company of either the Applicable Corporate Base Rate or the Applicable Fed Funds Rate as the Alternate Base Rate.
(2) All acts and conditions (including, without limitation, the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the execution, delivery and performance of the Credit Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, including, without limitation, documentation for corporate and legal proceedings in connection with the transactions contemplated by the Credit Documents shall be satisfactory in form and substance reasonably satisfactory to the LendersAdministrative Agent and its counsel.
(b4) The Tender Offer shall have been consummatedAll fees required to be paid on or before the date hereof pursuant to Paragraph 2(r) above and any other accrued and unpaid fees or commissions due hereunder or in connection herewith, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, all expenses due to the interests of Administrative Agent or First Union Capital Markets Corporation which are required to be paid on or before the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if anydate hereof, shall have been paid in fullprior to (or will be paid concurrently with) the making of the first Loan hereunder.
(e5) There EGI shall exist have contributed no action, suit, investigation, litigation or proceeding affecting any Loan Party or any less than $5,000,000 of its Subsidiaries pending or, paid-in capital to the knowledge of the Loan Parties or any of their SubsidiariesCompany no later than February 28, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions1997.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g6) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel delivered to the Administrative Agent and fees due each Lender a copy of each of EGI's and payable to the Joint Lead Arrangers pursuant to the Fee Letter)Company's audited consolidated and consolidating financial statements bearing an unqualified opinion from KPMG Peat Marwick.
Appears in 1 contract
Samples: Mortgage Loan Warehousing Agreement (Emergent Group Inc)
First Loan. In addition to the matters described in Section 3.1 4.1 hereof, the obligation of any the Lender to make the initial Loan on or the date thereof (obligation of the “Effective Date”) Lender to issue the first Letter of Credit is subject to the satisfaction receipt by the Lender of each of the following conditions precedentfollowing, in Proper Form:
(a) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in Proper Form and (except for the Notes) in sufficient copies for each Lender:
i. Counterparts to this Agreement Note executed by the Company and each LenderBorrower;
ii. The Notes payable to (b) the order Security Documents executed by the Borrower and all other necessary Parties, as applicable;
(c) a certificate executed by the Secretary or an Assistant Secretary of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor Borrower dated as of the Effective Datedate hereof, substantially in the form attached hereto as Exhibit E;
iv. Certified (d) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date);
(e) a copy of the Lender's field examination;
(f) the Borrower and the Lender shall have entered into the Lockbox Agreement;
(g) copies of all manufacturing servicing agreements of the Borrower which the Lender shall have requested;
(h) copies of all employment agreements, management fee agreements and tax sharing agreements which the Lender shall have requested;
(i) copies of the resolutions Borrower's Annual Audited Financial Statements for the fiscal year ending March 27, 1999;
(j) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the board of directors (or equivalent body) of each Loan Party approving transactions contemplated hereby as the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and Lender may reasonably request, executed by the parties thereto.
vi. copies of proper financing statements in respect of all Borrower or any other Person required by the Loan PartiesLender, together with evidence that such financing statements have been presented for filing on or before including without limitation, the Effective Date in all jurisdictions that Lockbox Agreement; and subject to the Agent may deem necessary or desirable in order to perfect and protect further conditions that, at the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate time of the Secretary of State of the jurisdiction of incorporation of each Loan Partyinitial Loan, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s officeownership, (2) such Loan Party has paid all franchise taxes to the date of such certificate corporate structure, solvency and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws capitalization of the State of the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate Borrower shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
ix. A certificate, in form and substance reasonably satisfactory to the LendersLender in all respects; (2) the Lender shall have had the opportunity, attesting if they elect, to examine the books of account and other records and files of the Borrower and to make copies thereof; (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Solvency of Security Documents shall have been taken, including without limitation, the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect delivery to the Transactions, from its chief financial officer.
x. Audited annual financial statements Lender of the Company and the Target all Property with respect to which possession is necessary for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactionspurpose of perfecting such Liens, and forecasts prepared with respect to Collateral covered by management the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Company, each in form and substance Lender shall also have received evidence reasonably satisfactory to it that the LendersLiens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in Sections 7.2(c), of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).and
Appears in 1 contract
Samples: Credit Agreement (Xetel Corp)
First Loan. In addition to the matters described in Section 3.1 4.1 hereof, the obligation of any Lender to make the initial Loan on or the date thereof (obligation of the “Effective Date”) Agent to issue the first Letter of Credit is subject to the satisfaction receipt by the Agent of each of the following conditions precedentfollowing, in Proper Form:
(a) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in Proper Form and (except for the Notes) in sufficient copies for each Lender:
i. Counterparts to this Agreement , executed by the Company and each LenderBorrower;
ii. The Notes payable to (b) the order Security Documents, executed by the Borrower;
(c) a certificate executed by the Secretary or Assistant Secretary of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor Borrower dated as of the Effective Datedate thereof, substantially in the form attached hereto as Exhibit G;
iv. Certified (d) certified copies of the resolutions Organizational Documents of the board of directors Borrower;
(or equivalent bodye) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of from the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws other appropriate public official of the State of Delaware 104 as to the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as continued existence of the Effective Borrower in the State of Delaware;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Delaware as to the good standing of the Borrower in the State of Delaware;
(g) certificates from the appropriate public officials of those jurisdictions, including without limitation, the State of Texas, where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Secretary of State’s certificate referred to Borrower in Section 3.2(a)(v), the form attached hereto as Exhibit H;
(Bi) a true and correct copy of the bylaws field examination, including a takeover field examination, of the Borrower's books and records and the results of such Loan Party as in effect on field examination; 105 (j) evidence that the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective DateBorrower has $4,000,000 or more of Availability, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
ix. A certificate, in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer.
x. Audited annual financial statements of the Company Loans occurring and the Target Letters of Credit issued on the Closing Date, together with sufficient evidence and written projections to confirm to the Agent's reasonable satisfaction that the projected Availability for the three fiscal years most recently ended and interim financial statements for next twelve (12) months after the fiscal quarters ended thereafter and prior to the Effective Closing Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management of the Company, each in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall will be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not no less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).$4,000,000;
Appears in 1 contract
First Loan. In addition As conditions precedent to any Lender's obligation to fund the first Loan hereunder:
(1) The Company and the Parent, as applicable, shall have delivered or shall have had delivered to the matters described Administrative Agent, in Section 3.1 hereof, the obligation of any Lender to make the initial Loan on the date thereof (the “Effective Date”) is subject form and substance satisfactory to the satisfaction Lenders and their counsel, each of the following conditions precedent:
(a) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in Proper Form and (except for the Notes) in with sufficient copies for each Lender:of the Lenders):
i. Counterparts (i) A duly executed copy of this Agreement;
(ii) A duly executed copy of the Security Agreement;
(iii) Duly executed originals of each of the Notes;
(iv) A duly executed copy of the Guaranty;
(v) Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the Administrative Agent, in its reasonable discretion, to this Agreement executed create and/or continue in favor of the Administrative Agent for the pari passu benefit of the Lenders a first priority perfected security interest in and lien upon the Collateral;
(vi) Acknowledgment copies of all UCC-1 financing statements filed with respect to the Collateral, accompanied by a search report showing such financing statements as duly filed and evidencing that the security interest of the Administrative Agent for the pari passu benefit of the Lenders in the Collateral is prior to all security interests of record;
(vii) Certified copies of resolutions of the Board of Directors of each of the Company and each Lenderthe Parent approving the execution and delivery of the Loan Documents, the performance of the Obligations and the consummation of the transactions contemplated thereby;
ii. The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. Certified copies of the resolutions of the board of directors (or equivalent bodyviii) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary or an Assistant Secretary of State each of the jurisdiction of incorporation of each Loan Party, dated reasonably near Company and the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) Parent certifying the names and true signatures of the officers of such Loan Party the Company and the Parent, as applicable, authorized to sign each the Loan Document to which it is or is to be a party Documents;
(ix) An opinion of counsel for the Company and the other documents to Parent, which counsel shall be delivered hereunder and thereunder.
ix. A certificate, in form and substance reasonably satisfactory to the LendersAdministrative Agent, attesting to in substantially the Solvency form of Exhibit D attached hereto and covering such other matters as the Administrative Agent may reasonably request;
(x) A copy of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer.
x. Audited annual financial statements Articles of Incorporation of the Company and the Target for Certificate of Incorporation of the three fiscal years most recently ended Parent, certified by the Secretaries of State of the State of California and interim financial statements for the fiscal quarters ended thereafter and prior to State of Delaware, respectively, as of a recent date;
(xi) A copy of the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to Bylaws of each of the Company and its Subsidiaries giving effect to the TransactionsParent, and forecasts prepared certified by management the Secretary or an Assistant Secretary of the CompanyCompany and the Parent, as applicable, as of the date of this Agreement as being accurate and complete;
(xii) Certificates of the Secretary of State of the State of California and the State of Delaware certifying that each of the Company and the Parent, respectively, are in good standing as of a recent date;
(xiii) A certificate of an executive officer of each of the Company and the Parent in the form of that attached hereto as Exhibit E dated as of the date of this Agreement;
(xiv) A certificate of a Responsible Financial Officer of each of the Parent and substance reasonably the Company demonstrating in detail satisfactory to the LendersAdministrative Agent the Parent's or the Company's compliance, as applicable, with the financial covenants set forth in Paragraphs 12(i), 12(j) and 12(k) below at and as of balance sheetsthe last day of October, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.1996; and
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably (xv) Evidence satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with Administrative Agent that upon the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests funding of the Lenders, first Loan hereunder all Obligations outstanding under (and as the Company shall have acquired not less than a majority of term "Obligations" is defined in) the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been Existing Credit Agreement will be paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
Samples: Mortgage Loan Warehousing Agreement (Aames Financial Corp/De)
First Loan. In addition to the matters described in Section 3.1 hereof, the obligation of any Lender to make the initial Loan on the date thereof (the “Effective Date”) is subject to the satisfaction case of the following conditions precedentfirst Loan:
(ai) The Agent shall have received receipt by the Bank of a duly executed Note, dated on or before the Effective Date date of such Loan, complying with the followingprovisions of Section 2.4;
(ii) all legal matters incident to this Agreement, each the Note, the Collateral Documents and the Guaranties and the transactions contemplated hereby and thereby shall be reasonably satisfactory to Mays & Valentine, L.L.P., counsel for the Bank;
(iii) receipt by the Bank of (A) a copy of the Borrower's certificate of incorporation, as amended, certified by the appropriate office of the State of Delaware; (B) a certificate of such office, dated such day (unless otherwise specified)as of a recent date, in Proper Form as to the good standing and charter documents of the Borrower on file; and (except for the NotesC) in sufficient copies for each Lender:
i. Counterparts to this Agreement executed by the Company and each Lender;
ii. The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. Certified copies of the resolutions of the board of directors (or equivalent body) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary of State or an Assistant Secretary of the jurisdiction Borrower dated the date of such Loan and certifying (1) that the certificate of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy Borrower has not been amended since the date of the charter of such Loan Party and each last amendment thereto indicated on file in such Secretary’s office and the certificate furnished pursuant to clause (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s officeabove, (2) as to the absence of dissolution or liquidation proceedings by or against the Borrower, (3) that attached thereto is a true and complete copy of the by-laws of the Borrower as in effect on the date of such Loan Party has paid all franchise taxes certification, (4) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Notes and the Collateral Documents to which the Borrower is a party and that said resolutions have not been amended and are in full force and effect on the date of such certificate and (35) such Loan Party is duly incorporated as to the incumbency and in good standing or presently subsisting under the laws specimen signatures of each officer of the State Borrower executing this Agreement, the Note and any Collateral Documents to which it is a party, or any other document delivered in connection herewith or therewith;
(iv) receipt by the Bank of duly executed copies of the jurisdiction Guaranties of its incorporation.
viii. A certificate of each Loan Party signed all Guarantors in existence on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of said Loan;
(vi) receipt by the Secretary Bank of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy certificates representing the shares of any stock pledged under the bylaws of such Loan Party as Pledge Agreements in effect on the date of said Loan, duly indorsed in blank or accompanied by stock powers duly executed in blank;
(vii) receipt by the Bank of an opinion of Chrixxxxxxx Xxxxxxx, general counsel for the Borrower, substantially in the form of Exhibit H hereto and covering such additional matters relating to the transactions contemplated hereby as the Bank may reasonably request;
(viii) (A) on or prior to the date of such Loan, each document (including, without limitation, each Uniform Commercial Code financing statement but excluding filings with the U.S. Copyright Office and the U.S. Patent and Trademark Office) required by law or reasonably requested by the Bank to be filed, registered or recorded in order to create in favor of the Bank a perfected first priority security interest in the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the resolutions referred filing, registration or recordation thereof is so required or requested; (B) within 10 days after the date of such Loan, each filing with the U.S. Copyright Office and the U.S. Patent and Trademark Office required by law or reasonably requested by the Bank to be filed, registered or recorded with respect to the Collateral shall have been properly filed, registered or recorded in Section 3.2(a)(iv) were adopted the appropriate office; and on the Effective Date, (C) the absence of any proceeding for Bank shall have received, within 30 days after the dissolution or liquidation date of such Loan PartyLoan, (D) the truth in all material respects an acknowledgment copy, or other evidence satisfactory to it, of each of the representations foregoing filings, registrations and warranties contained recordations;
(ix) receipt by the Bank of (A) certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing the financing statements referred to in clause (viii) above and all other effective financing statements that name the Borrower (under its present names and any previous names) as debtors or sellers and that are filed in the Loan jurisdictions referred to in clause (viii) above, together with copies of such other financing statements (none of which shall cover the Collateral, except as otherwise disclosed in writing to, and accepted by, the Bank); and (B) completed Lien search requests for all filings in the U.S. Copyright Office and the U.S. Patent and Trademark Office;
(x) receipt by the Bank of a landlord's waiver with respect to the Borrower's lease of its office space in Reston, Virginia and of evidence of the completion of all recordings and filings of the Collateral Documents as though made on and as may be necessary or, in the opinion of the Effective DateBank, desirable to perfect the Liens created by the Collateral Documents;
(Exi) receipt by the absence Bank of any event occurring evidence of the insurance required by the Collateral Documents;
(xii) receipt by the Bank of a certificate signed by the President of the Borrower, to the effect set forth in clauses (ii) and continuing, or resulting from (iii) of Section 3.1; and
(xiii) receipt by the initial Borrowing hereunder, that constitutes a DefaultBank of all documents it may reasonably request relating to the existence of the Borrower and the Guarantors, and (F) certifying their respective authority to execute, deliver and perform, as applicable, this Agreement, the names and true signatures of Note, the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party Guaranties, and the Collateral Documents and the validity of this Agreement, the Note, the Guaranties and the Collateral Documents and any other documents to be delivered hereunder and thereunder.
ix. A certificatematters relevant hereto or thereto, all in form and substance reasonably satisfactory to the LendersBank. The failure of any action to be taken, attesting or the failure of any documentation to be delivered to the Solvency Bank, required by this Section to be taken or delivered after the making of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer.
x. Audited annual financial statements of the Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management of the Company, each in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if anyrelated Loan, shall have been paid in fullconstitute a breach of covenant under this Agreement.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
First Loan. In addition to (i) receipt by the matters described in Section 3.1 hereof, the obligation Bank of any Lender to make the initial Loan on the date thereof (the “Effective Date”) is subject to the satisfaction of the following conditions precedent:
(a) The Agent shall have received a duly executed Note dated on or before the Effective Date date of such Loan, complying with the followingprovisions of Section 2.5;
(ii) all legal matters incident to this Agreement, each the Note and any Application delivered at such time, and the transactions contemplated hereby and thereby, shall be reasonably satisfactory to Xxxxxxxx Xxxxxxx LLP, counsel for the Bank;
(iii) receipt by the Bank of (A) a copy of the Borrower's certificate of incorporation, as amended, certified by the appropriate office of the State of Delaware; (B) a certificate of such office, dated such day (unless otherwise specified)as of a recent date, in Proper Form as to the good standing and charter documents of the Borrower on file; and (except for the NotesC) in sufficient copies for each Lender:
i. Counterparts to this Agreement executed by the Company and each Lender;
ii. The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. Certified copies of the resolutions of the board of directors (or equivalent body) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary of State or an Assistant Secretary of the jurisdiction Company dated the date of such Loan and certifying (1) that the certificate of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy Borrower has not been amended since the date of the charter of such Loan Party and each last amendment thereto indicated on file in such Secretary’s office and the certificate furnished pursuant to clause (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s officeabove, (2) as to the absence of dissolution or liquidation proceedings by or against the Borrower, (3) that attached thereto is a true and complete copy of the by-laws of the Borrower as in effect on the date of such Loan Party has paid all franchise taxes to certification, (4) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Note and any Applications delivered at such time and that said resolutions have not been amended and are in full force and effect on the date of such certificate and (35) such Loan Party is duly incorporated as to the incumbency and in good standing or presently subsisting under the laws specimen signatures of each officer of the State Borrower executing this Agreement, the Note and any Applications delivered at such time, or any other document delivered in connection herewith or therewith;
(iv) receipt by the Bank of an opinion of McGuireWoods LLP, counsel for the Borrower, covering such matters relating to the Borrower and the transactions contemplated hereby as the Bank may reasonably request;
(v) receipt by the Bank of certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements that name the Borrower (under its present name and any previous names) as debtor or seller, together with copies of such financing statements (all of which shall have been disclosed in writing to, and accepted by, the Bank);
(vi) receipt by the Bank of a certificate signed by the President or Executive Vice President - Finance and Administration of the jurisdiction Borrower, to the effect set forth in clauses (ii) and (iii) of its incorporation.Section 3.1; and
viii. A certificate (vii) receipt by the Bank of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated all documents it may reasonably request relating to the Effective Date (the statements made in which certificate shall be true on and as existence of the Effective Date)Borrower and its corporate authority to execute, certifying as to (A) deliver and perform this Agreement, the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party Note and the Applications and the validity of this Agreement, the Note and the Applications and any other documents to be delivered hereunder and thereunder.
ix. A certificatematters relevant hereto or thereto, all in form and substance reasonably satisfactory to the Lenders, attesting Bank. All documents and opinions referred to the Solvency of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer.
x. Audited annual financial statements of the Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management of the Company, each in this Article shall be in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements Bank and cash flow statements on an annual basis for each year following the Effective Date until the Termination Dateits counsel.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
First Loan. In addition As conditions precedent to the matters described in Section 3.1 hereof, the Lender's obligation of any Lender to make the initial first Loan on the date thereof (the “Effective Date”) is subject to the satisfaction of the following conditions precedenthereunder:
(a1) The Agent Company shall have received on or before delivered to the Effective Date Lender, in form and substance satisfactory to the Lender and its counsel, each of the following:
(i) A duly executed copy of this Agreement;
(ii) A duly executed copy of the Security Agreement;
(iii) A duly executed copy of the Note;
(iv) Duly executed copies of all financing statements and other documents, each dated such day (unless otherwise specified)instruments and agreements, properly executed, deemed necessary or appropriate by the Lender, in Proper Form and (except its reasonable discretion, to obtain for the NotesLender a perfected, first priority security interest in and lien upon the Collateral and, within sixty (60) in sufficient copies for each Lender:
i. Counterparts to this Agreement days following the date hereof, acknowledgments and consents duly executed by each investor under a Servicing Contract covering Assigned Rights and by the Company, as more particularly set forth in Paragraph 3(a)(3) above;
(v) Such credit applications, financial statements, authorizations and such information concerning the Company and each Lenderits business, operations and conditions (financial and otherwise) as the Lender may reasonably request;
ii. The Notes payable to the order of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. (vi) Certified copies of the resolutions of the board Board of directors (or equivalent body) Directors of each Loan Party the Company approving the Transaction execution and each Loan Document delivery of the Credit Documents to which it the Company is or is to be a party., the performance of the Obligations thereunder and the consummation of the transactions contemplated thereby;
v. a security agreement in substantially the form of Exhibit G-(vii) A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary of State or an Assistant Secretary of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) Company certifying the names and true signatures of the officers of such Loan Party the Company authorized to sign each Loan Document execute and deliver the Credit Documents to which it the Company is or is to be a party and the other documents to be delivered hereunder and thereunder.party;
ix. (viii) A certificate, in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency copy of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officer.
x. Audited annual financial statements Articles of the Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management Incorporation of the Company, each certified by the respective Secretary or an Assistant Secretary of the Company as of the date of this Agreement as being accurate and complete;
(ix) A copy of the Bylaws of the Company, certified by the respective Secretary or an Assistant Secretary of the Company as of the date of this Agreement as being accurate and complete;
(x) A certificate of the Secretary of State of the Commonwealth of Massachusetts, certifying as of a recent date that the Company is in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.good standing;
(xi. A favorable ) An opinion of counsel for the Company substantially in the form of EXHIBIT C attached hereto and covering such other matters as the Lender may reasonably request;
(xii) Evidence satisfactory to the Lender that each of the Funding Account and the Settlement Account has been opened;
(xiii) A schedule of the initial Approved Investors duly approved by the Lender;
(xiv) A duly completed Borrowing Base Schedule dated as of the date of the first Loan Partieshereunder and certified by the Company to be true in all respects; and
(xv) A Covenant Compliance Certificate demonstrating in detail satisfactory to the Lender that the Company is in compliance with the covenants set forth in Paragraphs 7(j), 7(k) and 7(l) below.
(2) All acts and conditions (including, without limitation, the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the execution, delivery and performance of the Credit Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, including, without limitation, documentation for corporate and legal proceedings in connection with the transactions contemplated by the Credit Documents shall be satisfactory in form and substance reasonably satisfactory to the LendersLender and its counsel.
(b4) The Tender Offer shall have been consummated, All fees required to be paid on or shall be consummated substantially concurrently with before the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, date hereof pursuant to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(cParagraph 2(l) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, above shall have been paid in full.
prior to (eor will be paid concurrently with) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge making of the first Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactionshereunder.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
First Loan. In addition to (i) receipt by the matters described in Section 3.1 hereofBank of a duly executed Note, the obligation of any Lender to make the initial Loan on the date thereof (the “Effective Date”) is subject to the satisfaction of the following conditions precedent:
(a) The Agent shall have received dated on or before the Effective Date date of such Loan, complying with the following, each dated such day provisions of Section 2.3;
(unless otherwise specified), in Proper Form and (except for the Notesii) in sufficient copies for each Lender:
i. Counterparts all legal matters incident to this Agreement executed and the Note, and the transactions contemplated hereby and thereby shall be reasonably satisfactory to Xxxx & Valentine, L.L.P., counsel for the Bank;
(iii) receipt by the Company and each Lender;
ii. The Notes payable Bank of (A) a copy of the Borrower's certificate of incorporation, as amended, certified by the appropriate office of the State of Delaware; (B) a certificate of such office, dated as of a recent date, as to the order good standing and charter documents of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty Borrower on file; and the Contribution Agreement duly executed and delivered by each Guarantor as of the Effective Date;
iv. Certified copies of the resolutions of the board of directors (or equivalent bodyC) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of the Secretary of State or an Assistant Secretary of the jurisdiction Borrower dated the date of such Loan and certifying (1) that the certificate of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy Borrower has not been amended since the date of the charter of such Loan Party and each last amendment thereto indicated on file in such Secretary’s office and the certificate furnished pursuant to clause (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s officeabove, (2) as to the absence of dissolution or liquidation proceedings by or (to the Borrower's knowledge) against the Borrower, (3) that attached thereto is a true and complete copy of the by-laws of the Borrower as in effect on the date of such Loan Party has paid all franchise taxes to certification, (4) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of the Borrower authorizing the execution, delivery and performance of this Agreement and the Note and that said resolutions have not been amended and are in full force and effect on the date of such certificate and (35) such Loan Party is duly incorporated as to the incumbency and in good standing or presently subsisting under the laws specimen signatures of each officer of the State Borrower executing this Agreement and the Note, or any other document delivered in connection herewith or therewith;
(iv) receipt by the Bank of an opinion of Xxxx and Xxxx, LLP, counsel for the Borrower, substantially in the form of Exhibit C hereto and covering such additional matters relating to the transactions contemplated hereby as the Bank may reasonably request;
(v) receipt by the Bank of a certificate signed by the President of the jurisdiction Borrower, to the effect set forth in clauses (ii) and (iii) of its incorporation.Section 3.1; and
viii. A certificate (vi) receipt by the Bank of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated all documents it may reasonably request relating to the Effective Date (the statements made in which certificate shall be true on and as existence of the Effective Date)Borrower and its authority to execute, certifying as to (A) deliver and perform this Agreement, the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.2(a)(v), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective Date, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party Note and the Applications and the validity of this Agreement, the Note and the Applications and any other documents to be delivered hereunder and thereunder.
ix. A certificatematters relevant hereto or thereto, all in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the Transactions, from its chief financial officerBank.
x. Audited annual financial statements of the Company and the Target for the three fiscal years most recently ended and interim financial statements for the fiscal quarters ended thereafter and prior to the Effective Date and for the most recent quarter for which financial statements are available, pro forma financial statements as to the Company and its Subsidiaries giving effect to the Transactions, and forecasts prepared by management of the Company, each in form and substance reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Effective Date until the Termination Date.
xi. A favorable opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Lenders.
(b) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company shall have paid all accrued fees and expenses of the Agent that are due and payable in accordance herewith (including the accrued fees and expenses of counsel to the Agent and fees due and payable to the Joint Lead Arrangers pursuant to the Fee Letter).
Appears in 1 contract
Samples: Credit Agreement (Microstrategy Inc)
First Loan. In addition to the matters described in Section 3.1 SECTION 4.1 hereof, the obligation of any Lender to make the initial Loan on or the date thereof (obligation of the “Effective Date”) Lender to issue the first Letter of Credit is subject to the satisfaction receipt by the Lender of each of the following conditions precedentfollowing, in Proper Form:
(a) The Agent shall have received on or before the Effective Date the followingNote, each dated such day (unless otherwise specified), in Proper Form and (except for the Notes) in sufficient copies for each Lender:
i. Counterparts to this Agreement executed by the Company and each LenderBorrower;
ii. The Notes payable to (b) the order Security Documents executed by the Borrower;
(c) a certificate executed by the Secretary or Assistant Secretary of the Lenders to the extent requested by the Lenders pursuant to the terms hereof;
iii. The Guaranty and the Contribution Agreement duly executed and delivered by each Guarantor Borrower dated as of the Effective Datedate thereof, substantially in the form attached hereto as EXHIBIT F;
iv. Certified (d) certified copies of the resolutions Organizational Documents of the board of directors Borrower;
(or equivalent bodye) of each Loan Party approving the Transaction and each Loan Document to which it is or is to be a party.
v. a security agreement in substantially the form of Exhibit G-A authorized and executed by the parties thereto.
vi. copies of proper financing statements in respect of all the Loan Parties, together with evidence that such financing statements have been presented for filing on or before the Effective Date in all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement A, covering the Collateral described therein.
vii. A copy of a certificate of from the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws other appropriate public official of the State of Texas as to the jurisdiction of its incorporation.
viii. A certificate of each Loan Party signed on behalf of such Loan Party by its secretary or any assistant secretary, dated the Effective Date (the statements made in which certificate shall be true on and as continued existence of the Effective Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Secretary of State’s certificate referred to Borrower in Section 3.2(a)(v), the form attached hereto as EXHIBIT G;
(Bi) a true and correct copy of the bylaws field examination, including a takeover field examination, of the Borrower's books and records and the results of such Loan Party as in effect on field examination;
(j) evidence that the date on which the resolutions referred to in Section 3.2(a)(iv) were adopted and on the Effective DateBorrower has $700,000 or more of Availability, (C) the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date, (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing hereunder, that constitutes a Default, and (F) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
ix. A certificate, in form and substance reasonably satisfactory to the Lenders, attesting to the Solvency of the Company and its Subsidiaries, on a consolidated basis, both before and after giving effect to the TransactionsLoans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), from its chief financial officer.
x. Audited annual financial statements dated as of the Company Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Target for Security Documents;
(m) the three fiscal years most recently ended Borrower and interim financial statements for the fiscal quarters ended thereafter Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and prior supplier contracts with respect to the Effective Date Borrower;
(o) copies of all employment agreements, management fee agreements and for tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the most recent quarter for which financial statements are availableBorrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, pro forma financial statements as notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Company and its Subsidiaries giving effect Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Transactions, and forecasts prepared by management Lender with respect to the disbursement of the Companyproceeds of the Loans and the issuance of the Letters of Credit, each in form if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and substance any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at the time of the initial Loan, (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the LendersLender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of balance sheetsaccount and other records and files of the Borrower and to make copies hereof, income statements and cash flow statements on to conduct a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an annual basis for each year following opening Borrowing Base as of the Effective Closing Date until (with the Termination Date.
xi. A favorable opinion results of counsel such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the Loan Partiespurpose of perfecting such Liens, in form and substance with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Lenders.
Liens created by the Security Documents constitute first priority Liens (bexcept for any Liens expressly provided for in SECTION 7.2 below); (5) The Tender Offer shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing hereunder, on substantially the terms and conditions set forth in the Merger Agreement, without any amendment or waiver of any material term thereof that is adverse, in any material respect, to the interests of the Lenders, and the Company shall have acquired not less than a majority of the capital stock of the Target.
(c) The Company’s existing revolving credit facilities with JPMorgan Chase Bank, N.A. shall have been terminated.
(d) The Target’s existing credit and letter of credit facilities with Bank of America, N.A. shall have been terminated and all loans, if any, outstanding thereunder, as well as all accrued interest and fees thereunder, if any, shall have been paid in full.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Loan Parties or any of their Subsidiaries, threatened before any Governmental Authority that has had or could reasonably be expected to have a Material Adverse Effect on the legality, validity or enforceability of any Loan Document or the consummation of the Transactions.
(f) All governmental authorizations and third-party consents and approvals required to be obtained under the Merger Agreement in connection with the Transactions shall have been obtained (without the imposition of any conditions that materially and adversely impair the rights and remedies of the Lenders under the Loan Documents) and shall remain in effect.
(g) The Company Borrower shall have paid all accrued fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses of the Agent that are due described in SECTION 9.09 or otherwise and payable in accordance herewith (including the accrued fees and expenses of counsel 6) all other legal matters incident to the Agent and fees due and payable transactions herein contemplated shall be reasonably satisfactory to counsel for the Joint Lead Arrangers pursuant to the Fee Letter)Lender.
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