Initial Advance. At or prior to the time of the initial advance under the Revolving Credit or Term Credit, the following conditions precedent shall also have been satisfied: (a) The Agent shall have received the following for the account of the Banks (each to be properly executed and completed) and the same shall have been approved as to form and substance by the Agent and Required Banks: (i) this Agreement and the Notes; (ii) copies (executed or certified as may be appropriate) for each Bank of the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents or proceedings taken in connection with the execution and delivery of the Loan Documents to the extent the Agent or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority of, and setting forth a specimen signature of, each officer who is to sign any Loan Document; (iii) a Subsidiary Guaranty from each Subsidiary not a party hereto; (iv) the ▇▇▇▇▇▇ Guaranty; (v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof; (vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents; (vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder; (viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter; (ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later; (x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997; (xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and (xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement; (b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing; (c) Nothing shall have come to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent; (d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year; (e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent; (f) The Agent shall be satisfied with insurance and environmental matters; (g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respects; (h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and (i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions as the Agent may reasonably request.
Appears in 1 contract
Initial Advance. At or prior to Notwithstanding any other provisions of --------------- this Agreement and without affecting in any manner the time rights of the initial advance Lender hereunder, the Borrower shall have no rights under this Agreement (but shall have all applicable obligations hereunder), and the Revolving Lender shall not be obligated to make any Advances or incur Letter of Credit Obligations, or Term Creditto take, fulfill, or perform any other action hereunder, until the following conditions precedent shall also have been satisfied, in the Lender's sole discretion, or waived in writing by the Lender:
(a) This Agreement or counterparts thereof shall have been duly executed by, and delivered to, the Lender and the Borrower.
(b) The Agent Lender shall have received such documents, instruments and agreements as the following for Lender shall request in connection with the account transactions contemplated by this Agreement, including all documents, instruments, agreements listed in the Schedule of the Banks (Documents, each to be properly executed and completed) and the same shall have been approved as to in form and substance by satisfactory to the Agent and Required Banks:Lender.
(ic) this Agreement and Evidence, satisfactory to the Notes;
(ii) copies (executed or certified as may be appropriate) for each Bank of Lender, that the articles of incorporation, by-laws, operating agreements and management agreements of the Company Borrower and each of its Subsidiaries has obtained consents and acknowledgments of all legal documents or proceedings taken in connection with Persons whose consents and acknowledgments may be required, including, but not limited to, all requisite Governmental Authorities, to the terms, and to the execution and delivery delivery, of this Agreement, the Loan Documents to and the extent the Agent or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority of, and setting forth a specimen signature of, each officer who is to sign any Loan Document;
(iii) a Subsidiary Guaranty from each Subsidiary not a party hereto;
(iv) the ▇▇▇▇▇▇ Guaranty;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock consummation of the Subsidiaries which are corporations together with executed blank stock powers therefor, transactions contemplated hereby and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;thereby.
(d) The Agent shall have received assurances reasonably Evidence satisfactory to it the Lender that the Proforma EBITDA insurance policies provided for the Company in Section 4.26 and Intersound for the Company's monthly accounting period ending December 31Schedule "4.26" are in full force and effect, 1996 was higher than the Proforma EBITDA ------------ --------------- together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements, as appropriate, in favor of the Company Lender and Intersound for in form and substance satisfactory to the corresponding monthly accounting period in the Company's immediately preceding fiscal year;Lender.
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated Payment by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf Borrower of the Company Closing Fee and same shall be true and correct in all material respects;
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions as the Agent may reasonably requestTransaction Expenses.
Appears in 1 contract
Initial Advance. At or prior to the time making of the initial advance under the Revolving Credit or Term Creditextension of credit hereunder, the following conditions precedent shall also have been satisfied:
(a) The Agent the Bank shall have received the following for the account of the Banks (each to be properly executed and completed) and the same shall have been approved as to form and substance by the Agent and Required BanksBank:
(i) this Agreement and the NotesRevolving Credit Note;
(ii) the Collateral Documents, including the lockbox agreement required pursuant to Section 4.2 hereof (including, without limitation, all certificates evidencing the Company's Kaneb MLP Units being pledged under the Collateral Assignment of MLP Units, together with executed blank stock powers therefor, and all financing statements requested by the Bank in connection with the Collateral Documents);
(iii) copies (executed or certified certified, as may be appropriate) for each Bank of the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents or proceedings taken in connection with the execution and delivery of this Agreement and the other Loan Documents to the extent the Agent Bank or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority of, and setting forth a specimen signature of, each officer who is to sign any Loan Document;
(iii) a Subsidiary Guaranty from each Subsidiary not a party hereto;
(iv) an incumbency certificate containing the ▇▇▇▇▇▇ Guarantyname, title and genuine signatures of each of the Company's Authorized Representatives;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates evidence of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent insurance required by Section 5.1 8.4 hereof;
(vi) evidence a written consent from Mart▇▇ ▇▇ the collateral assignment of the maintenance of insurance Company's rights under the Purchase Agreement and related documents as required hereby or by security for the Initial Collateral DocumentsObligations;
(vii) a certificate an agreement from an authorized officer Kaneb Company to redeem the Company's Kaneb MLP Units of the Company stating whether the pro forma combined and consolidated balance sheet type contemplated by clause (b) of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as definition of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunderterm "Freely Tradeable";
(viii) a payoff letter from each holder Bank of America Illinois setting forth the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan amount of indebtedness and other agreements shall automatically be canceled), (ii) obligations owed it by Mart▇▇ ▇▇▇ "Canceled" or "Paid" and returned containing its agreement to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case Liens upon receipt of the such payoff amount stated in such letter;amount; and
(ix) an employment except to the extent waived in writing by the Bank, agreements providing the Bank access to inventory of the Company located in storage facilities not owned by the Company.
(b) the Bank shall have received the initial fees called for hereby;
(c) the Bank shall have received such valuations and non-compete agreement between certifications as it may require in order to satisfy itself as to the value of the Collateral, the financial condition of the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with its Subsidiaries, and the lack of material contingent liabilities of the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is laterits Subsidiaries;
(xd) copies of all instruments evidencing or setting forth terms and conditions applicable legal matters incident to the Intersound Sub Debtexecution and delivery of the Purchase Agreement, such terms this Agreement and conditions the other Loan Documents and to providethe transactions contemplated hereby and thereby shall be satisfactory to the Bank and its counsel; and the Bank shall have received the favorable written opinion of counsel for the Company in form and substance satisfactory to the Bank and its counsel;
(e) the Bank shall have received a Borrowing Base certificate in the form attached hereto as Exhibit C showing the computation of the Borrowing Base in reasonable detail as of the close of business not earlier than March 23, 1998 and showing, among other things, that no payment excess availability of principal, interest or premium at least $500,000 after deeming as borrowed hereunder an amount equal to all but $100,000 of the Company's accounts payable over sixty (if any60) shall be required on the Intersound Sub Debt prior to May 31, 1997days past due;
(xif) the Bank shall have received a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment copy of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment Purchase Agreement, which agreement shall be in form and substance satisfactory to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase AgreementBank and its counsel;
(bg) All all conditions precedent to the Intersound Acquisition Mart▇▇ ▇▇▇uisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' Bank's funding of not more than $23,900,000 of the cash purchase price therefor for the Mart▇▇ ▇▇▇uisition and the Agent Bank shall have received evidence assurances satisfactory to it of the foregoing;
(ch) Nothing the Company shall have come common stock and paid-in equity capital of at least $8,000,000 immediately prior to consummation of the Mart▇▇ ▇▇▇uisition as a result of equity contributions to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the from Kaneb Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections form of at least $2,500,000 in cash and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agentremainder in Kaneb MLP Units which are Freely Tradeable;
(di) The Agent the Bank shall have received assurances reasonably satisfactory to it that the Proforma EBITDA a good standing certificate for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA (dated as of the Company date no earlier than thirty (30) days prior to the date hereof) from the office of the secretary of state of the state of its incorporation and Intersound for the corresponding monthly accounting period each state in the Company's immediately preceding fiscal yearwhich it is qualified to do business as a foreign corporation;
(ej) The liens and security interests the Liens granted to the Agent Bank under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the AgentBank and its counsel;
(fk) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller Bank shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order evidence satisfactory to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf it that $2,000,000 of the Company and same shall be true and correct in all material respects;
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the CompanyBonding Requirement is satisfied; and
(il) The Agent the Bank shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions as the Agent Bank may reasonably request.
Appears in 1 contract
Initial Advance. At or prior Prior to the time of the initial advance under the Revolving Credit or Term CreditAdvance being made hereunder, the following conditions precedent Borrower shall also have been satisfieddelivered to the Lender the following:
(a) The Agent shall have received this Agreement and any other Loan Documents, including without limitation, the following for Note, the account of Guaranty and Security Agreement, and the Banks (Account Control Agreements, each to be properly executed and completed) and the same shall have been approved as to by all parties thereto, all in form and substance reasonably satisfactory to the Lender;
(b) written evidence of the receipt of the Required Consents, in form and substance satisfactory to the Lender;
(c) confirmation satisfactory to the Lender that the Additional 1031 Liquidity has been received by the Agent and Required Banks:Guarantor;
(id) all certificates, instruments and other documentation representing or evidencing the Collateral, including copies of the three most recent monthly account statements showing the securities that comprise the Collateral, all in form and substance satisfactory to the Lender;
(e) if applicable, UCC-1 financing statements covering the Collateral, that have been duly recorded or filed in the manner and places required by law to establish, preserve, protect and perfect the interests and rights created or intended to be created by this Agreement and the NotesGuaranty and Security Agreement;
(iif) copies (executed or certified as may be appropriate) for each Bank a copy of the articles of incorporation, by-laws, operating agreements and management agreements certified resolutions of the Company and board of directors (or other appropriate governing body) of each of its Subsidiaries the Borrower and the Guarantor as well as each other Person executing any Loan Documents, certified by the Secretary or another authorized officer of all legal documents the Borrower, the Guarantor or proceedings taken in connection with such other Person, authorizing the execution execution, delivery and delivery performance of the Loan Documents to which such Person is a party;
(g) confirmation from the extent Borrower and FNF that the Agent Merger Agreement has been executed and delivered by all parties thereto and that no notice of termination pursuant to Section 8.1 of the Merger Agreement has been sent by any of the parties thereto; and
(h) all additional documents, certificates and other assurances that the Lender or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority of, and setting forth a specimen signature of, each officer who is to sign any Loan Document;
(iii) a Subsidiary Guaranty from each Subsidiary not a party hereto;
(iv) the ▇▇▇▇▇▇ Guaranty;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respects;
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions as the Agent may reasonably requestrequire.
Appears in 1 contract
Initial Advance. At The obligation of the Lenders to make any Advance under this Agreement is subject to the satisfaction, in the sole discretion of the Agent, on or before the date thereof, of the following conditions precedent, save and except that Agent may, at its sole option, waive any one or more of the following conditions prior to the time Initial Advance but such waiver shall not prevent Agent from requiring compliance of such condition(s) prior to any subsequent Advance to the initial advance under extent set forth in a supplemental agreement entered into between the Revolving Credit or Term Credit, the following conditions precedent shall also have been satisfiedBorrower and Agent:
(a) The Each of the Loan Documents shall have been duly executed and delivered by the respective parties thereto and, shall be in full force and effect and shall be in form and substance satisfactory to each of the Lenders.
(b) UCC, tax lien and judgment searches of the appropriate public records for the Borrower that do not disclose the existence of any prior Lien on the Collateral other than in favor of Agent or as permitted under this Agreement, or other than a Lien in favor of any Person which Lien shall be terminated in accordance with the provisions of this Agreement.
(c) Agent shall have received from the following Borrower a copy, certified as of a recent date by the appropriate officer of the State in which such Person is organized to be true and complete, of the corporate charter and any other organization documents of such Person as in effect on such date of certification. The Borrower shall furnish evidence satisfactory to the Agent that they are each duly qualified and in good standing in each jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify, except where the failure to so qualify could not have a materially adverse effect on the business, assets, or financial condition of the Borrower.
(d) Agent shall have received from the Borrower financial statements of the Borrower (and its Subsidiaries, on a consolidated basis) containing a balance sheet as of December 31, 2007 (the “Statement Date”) and related statements of income, changes in stockholders’ equity and cash flows for the account period ended on the Statement Date and a balance sheet as of March 31, 2008 (“Interim Date”) and related statement of income for the period ended on the Interim Date, all prepared in accordance with GAAP applied on a basis consistent with prior periods and in the case of the Banks statements as of the Statement Date, audited by independent certified public accountants of recognized standing acceptable to the Agent, together with an Officer Certificate prepared as of the Interim Date and executed by any officer of the Borrower.
(each to be properly executed and completede) UCC financing statements naming the Borrower as debtor and the same Agent as secured party covering the Collateral shall have been approved as duly recorded and filed to form the satisfaction of Agent and its counsel.
(f) Agent shall have received evidence, in form, scope and substance and with such insurance carriers, satisfactory to the Agent, for all insurance policies required under any of the Loan Documents.
(g) There shall be no pending or threatened litigation involving the Borrower which could reasonably be expected to result in a Material Adverse Change, and no judgment, order, injunction or other similar injunction or other similar restraint prohibiting any of the transactions contemplated hereby shall exist.
(h) All action on the part of the Borrower necessary for the valid execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents shall have been duly and effectively taken, and evidence thereof satisfactory to the Agent shall have been provided to the Agent. Agent shall have received from the Borrower true copies of resolutions adopted by the their respective boards of directors authorizing the transactions described herein, each certified by each of their secretaries as of a recent date to be true and Required Banks:complete.
(i) this Agreement and Agent shall have received from the Notes;
(ii) copies (executed or certified Borrower an incumbency certificate, dated as may be appropriate) for each Bank of the articles of incorporationClosing Date, by-laws, operating agreements and management agreements signed by a duly authorized officer of the Company Borrower and giving the name and bearing a specimen signature of each individual who shall be an Authorized Representative: (a) to sign, in the name and on behalf of its Subsidiaries and of all legal documents or proceedings taken in connection with the execution and delivery such Person, each of the Loan Documents to which such Person is or is to become a party; (b) with respect to the extent Borrower, to make requests for Advances; and (c) to give Notices and to take other action on behalf of the Borrower under the Loan Documents.
(j) Agent shall have received a favorable written opinion of counsel to the Borrower, dated as of the Closing Date in form, scope, and substance satisfactory to the Agent, addressed to the Agent and the Lenders.
(k) Copies of the certificates, documents or its counsel may reasonably requestother written instruments that evidence the Borrower’s eligibility described in Section 5.11, together with copies of all seller/servicer contracts to which the Borrower is a party, all in form and substance satisfactory to Agent.
(l) Borrower shall have paid to the Agent all fees and expenses required pursuant to this Agreement and the other Loan Documents.
(m) The Agent shall be satisfied that (i) the Borrower has obtained all material and appropriate authorizations and approvals of all governmental authorities (including, without limitation, any approvals required by any of F▇▇▇▇▇ M▇▇, FHA, F▇▇▇▇▇▇ Mac, G▇▇▇▇▇ M▇▇, HUD), required for the due execution, delivery and performance by the Borrower of each of the Loan Documents and for the perfection of or the exercise by the Agent and each Lender of their respective rights and remedies under the Loan Documents, and (ii) all transactions contemplated hereby shall be in material compliance with, and the Borrower shall have obtained all material and appropriate approvals pertaining to, all applicable laws, rules, regulations and orders, including, without limitation, certificates as all governmental, environmental, ERISA, retiree health benefits, workers’ compensation and other requirements, regulations and laws and shall not contravene any charter, by-law, debt instrument or other material contact or agreement to the incumbency and authority of, and setting forth which Borrower is a specimen signature of, each officer who is to sign any Loan Document;party.
(iiin) a Subsidiary Guaranty from each Subsidiary not a party hereto;No Material Adverse Change shall have occurred since the Statement Date and the Interim Date.
(ivo) the ▇▇▇▇▇▇ Guaranty;
(v) the Initial Collateral Documents Borrower shall have provided such additional instruments and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment documents to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respects;
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions Lenders as the Agent and the Agent’s counsel may have reasonably requestrequested.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Centerline Holding Co)
Initial Advance. At or prior Lenders will not be obligated to fund the time initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the initial advance under items in clauses (a) through (i) below, each in form and substance satisfactory to Administrative Agent and each of the Revolving Credit or Term CreditLenders, and the following conditions precedent shall also in clauses (j) and (k) below have been satisfied:satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) The an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) with respect to any Lender requesting a Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Lender, as contemplated in Section 3.1(a), and if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated after February 17, 2014;
(g) Legal opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall have received the following for the account of the Banks (request, each to be properly executed and completed) and the same shall have been approved as to in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by the Agent and Required Banks:
a Responsible Officer certifying that (i) this Agreement all of the representations and warranties of the Notes;
Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) copies no Default or Potential Default exists under the Existing Agreement; (executed iii) no Default or certified as may be appropriate) for each Bank of the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents Potential Default exists or proceedings taken in connection with would result from the execution and delivery of the Loan Documents Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2013 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the extent the Agent knowledge of Borrower, threatened, in any court or its counsel may before any arbitrator or Governmental Authority that could reasonably request, including, without limitation, certificates as be expected to the incumbency and authority of, and setting forth result in a specimen signature of, each officer who is to sign any Loan DocumentMaterial Adverse Event;
(iiii) a Subsidiary Guaranty from each Subsidiary not a party heretoevidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(ivj) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(k) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ Guaranty;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which , LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (icollectively, “Attorney Costs”) obligates ▇▇▇▇▇▇ of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided, that such estimate shall not to compete thereafter preclude a final settling of accounts between Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the Company for a period ending no earlier than repayment conditions specified in full of the Term Credit Loans or May 31this Section 7.1, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, each Lender that no payment of principal, interest or premium (if any) has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy thereunder to be assigned by the Life Insurance Assignment consented to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers or approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come notice from such Lender prior to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and proposed Closing Date specifying its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respects;
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions as the Agent may reasonably requestthereto.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Initial Advance. At Lenders will not be obligated to fund the initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless (x) there have been no changes or developments in the information and projections provided by the Companies prior to the time date hereof to Administrative Agent and Lenders in connection with the transactions contemplated hereby, (y) Administrative Agent and Lenders have not received or discovered new or additional information regarding the Companies that could reasonably be expected to cause a Material Adverse Event, and (z) Administrative Agent has received each of the initial advance under items in clauses (a) through (k) below, and the Revolving Credit or Term Credit, the following conditions precedent shall also in clauses (l) and (m) below have been satisfied:satisfied (other than each item or condition, if any, listed on Schedule 7.1, which items or conditions are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) The Agent shall have received an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) with respect to any Lender requesting a Note pursuant to Section 3.1(a), a Revolver Note, payable to the following for order of such requesting Lender, as contemplated in Section 3.1(a), and if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from the account holder of the Banks capital stock or other equity interests of any Restricted Company or SSI, as applicable, (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging such capital stock or other equity interest, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to be properly articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency;
(f) Certificates of Existence and Good Standing (Account Status) for each Restricted Company from its state of organization and each other state where it does business, each dated after January 1, 2005;
(g) Forest Service Permit Agreements duly executed by the United States Department of Agriculture, Forest Service, the applicable Company, and completedAdministrative Agent;
(h) Legal opinions of Martha Dugan Rehm, General Counsel of VRI, and Cahill Gordon & Reindel LLP, special New York counsel to Borrower and the same other Restricted Subsidiaries, each in ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇e satisfactory to Administrati▇▇ ▇▇▇▇▇; ▇▇▇ of ▇▇▇ ▇▇regoing opinions shall have include opinions confirming that (i) the Debt incurred under this Agreement and the related Loan Papers (A) has been approved incurred or entered into in compliance with the requirements of the Senior Subordinated Indenture, and (B) constitutes “Senior Debt” under the terms of the Senior Subordinated Indenture, and (ii) this Agreement constitutes the “Credit Agreement” as to form and substance by such term is defined in the Agent and Required Banks:Senior Subordinated Indenture.
(i) this Agreement a certificate signed by a Responsible Officer certifying that (i) all of the representations and warranties of the Notes;
Companies in the Loan Papers are true and correct in all material respects; (ii) copies no Default or Potential Default exists under the Existing Agreement; (executed iii) no Default or certified as may be appropriate) for each Bank of the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents Potential Default exists or proceedings taken in connection with would result from the execution and delivery of the Loan Documents Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2004 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the extent knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to (A) materially and adversely affect the Agent Companies, or its counsel may reasonably request(B) adversely affect any transaction contemplated hereby, includingthe rights and remedies of Administrative Agent, without limitation, certificates as to the incumbency and authority ofLenders, and setting forth a specimen signature ofthe L/C Issuers hereunder, each officer who is or the ability of the Companies or any other obligor under any Guaranty to sign any Loan Documentperform their respective obligations under the Agreement;
(iiij) a Subsidiary Guaranty from each Subsidiary not a party heretoevidence that all insurance required to be maintained pursuant to the Loan Papers has been obtained and is in effect;
(ivk) evidence, in form and substance satisfactory to Administrative Agent, that concurrently with the Closing Date, the “Term Loans” under the Existing Agreement shall be repaid in full, the security interests of the “Term Loan Lenders” in the collateral shall be released, and all obligations of Borrower with respect thereto shall be terminated;
(l) payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of the Administrative Agent, and any Lender as provided for in Section 5; and
(m) unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of Haynes and Boone, LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of intern▇▇ ▇▇▇nsel (▇▇▇▇▇▇ Guaranty;
(vectively, “Attorney Costs”) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Administrative Agent in connection with the Initial Collateral Documents) to the extent required invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by Section 5.1 hereof;
it through the closing proceedings (vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other thingsprovided, that no payment such estimate shall not thereafter preclude a final settling of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy accounts between Borrower and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Administrative Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respects;
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions as the Agent may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Initial Advance. At or prior Lenders will not be obligated to fund the time initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the initial advance under items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Revolving Credit or Term CreditLenders, and the following conditions precedent shall also in clauses (l) and (m) below have been satisfied:satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) The an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and Borrower;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall have received the following for the account of the Banks (request, each to be properly executed and completed) and the same shall have been approved as to in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by the Agent and Required Banks:
a Responsible Officer certifying that (i) this Agreement all of the representations and warranties of the Notes;
Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) copies no Default or Potential Default exists under the Existing Agreement; (executed iii) no Default or certified as may be appropriate) for each Bank of the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents Potential Default exists or proceedings taken in connection with would result from the execution and delivery of the Loan Documents Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the extent knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Agent or its counsel may Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requestrequests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, certificates as the Act, in each case at least 3 days prior to the incumbency and authority ofClosing Date.
(k) at least 5 days prior to the Closing Date, and setting forth any Borrower that qualifies as a specimen signature of“legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each officer who is Lender that so requests, a Beneficial Ownership Certification in relation to sign any Loan Documentsuch Borrower;
(iiil) a Subsidiary Guaranty from each Subsidiary not a party hereto;payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(ivm) the unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ Guaranty;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which , LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (icollectively, “Attorney Costs”) obligates ▇▇▇▇▇▇ of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided, that such estimate shall not to compete thereafter preclude a final settling of accounts between Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the Company for a period ending no earlier than repayment conditions specified in full of the Term Credit Loans or May 31this Section 7.1, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, each Lender that no payment of principal, interest or premium (if any) has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy thereunder to be assigned by the Life Insurance Assignment consented to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers or approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come notice from such Lender prior to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and proposed Closing Date specifying its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respects;
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions as the Agent may reasonably requestthereto.
Appears in 1 contract
Initial Advance. At On or prior to the time of Closing Date, Borrowers shall have delivered to Agent the initial advance under the Revolving Credit or Term Credit, the following conditions precedent shall also have been satisfiedfollowing:
(a) The Agent shall have received the following for the account duly executed copies of the Banks (each to be properly executed and completed) and the same shall have been approved as to following, in form and substance by the Agent and Required Banksacceptable to Agent:
(i) this Agreement and the NotesAgreement;
(ii) copies (executed or certified as may be appropriate) for each Bank of the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents or proceedings taken in connection with the execution and delivery of the Loan Documents to the extent the Agent or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority of, and setting forth a specimen signature of, each officer who is to sign any Loan Documentcompleted ACH Authorization;
(iii) a Subsidiary Guaranty from each Subsidiary not a party heretoAccount Control Agreements with respect to all Deposit Accounts and any accounts where Investment Property is maintained, as required by Section 7.12 hereof;
(iv) a duly executed certificate of an officer of each Borrower certifying and attaching copies of (A) the ▇▇▇▇▇▇ GuarantyCharter, certified as of a recent date by the jurisdiction of organization of such Borrower as in effect as of the Closing Date; (B) the bylaws, operating agreement or similar governing document of such Borrower, as in effect as of the Closing Date; (C) resolutions of such Borrower’s Board evidencing approval of the Loan and other transactions contemplated by the Loan Documents, as in effect as of the Closing Date; (D) resolutions of the holders of such Borrower’s Equity Interests in connection with the transactions contemplated by this Agreement as in effect as of the Closing Date, to the extent required by the applicable Organizational Documents; and (E) a schedule setting forth the name, title and specimen signature of officers or other authorized signers on behalf of each Borrower;
(v) a duly executed certificate of an officer of Parent certifying and attaching copies of (A) the Initial Collateral Documents and any documentation necessary to perfect Charter, certified as of a recent date by the liens thereby created (includingjurisdiction of organization of each Platform Company, without limitation, all certificates of capital stock as in effect as of the Subsidiaries which are corporations together with executed blank stock powers thereforClosing Date; (B) the bylaws, operating agreement or similar governing document of each Platform Company; (C) copies of all Equity Documents in effect as of the Closing Date; and with all financing statements requested by the Agent in connection with the Initial Collateral Documents(D) to the extent required by Section 5.1 hereofa summary capitalization table of each Platform Company;
(vi) evidence a legal opinion of the maintenance of insurance as required hereby or by the Initial Collateral DocumentsBorrowers’ counsel;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined any other Loan Documents; and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder all other documents and instruments reasonably required by Agent to effectuate the transactions contemplated hereby or to create and perfect the Liens of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees Agent with respect to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;Collateral.
(b) All conditions precedent all originals certificates evidencing Pledged Collateral pledged pursuant to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement Section 3.3 together with any transfer powers or other instruments of transfer, in form and without waiver by the Company of any of the conditions precedent substance acceptable to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention copies of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at varianceall consents, in any material respectwaivers, from those presumed in the Approved Projections and the other pro forma balance sheets notices and other financial materials documents set forth on the Company and Intersound heretofore most recently submitted by the Company to the AgentSchedule 5.15(ii);
(d) The Agent shall a certificate of good standing for each Borrower from its jurisdiction of organization and similar certificates from all other jurisdictions in which it does business and where the failure to be qualified could have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal yeara Material Adverse Effect;
(e) The liens payment of the Facility Charge and security interests granted reimbursement of Agent’s and Lender’s current expenses reimbursable pursuant to this Agreement, which amounts may be deducted from the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agentinitial Advance;
(f) The Agent shall be satisfied with all certificates of insurance, endorsements, and copies of each insurance and environmental matters;policy required pursuant to Section 6.2; and
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respects;
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions documents as the Agent may reasonably request. Notwithstanding the foregoing, to the extent any of the above closing conditions is set forth on Schedule 7.19, Borrowers may deliver the same when required to be delivered pursuant to Schedule 7.19.
Appears in 1 contract
Sources: Loan and Security Agreement (BridgeBio Pharma, Inc.)
Initial Advance. At or prior Prior to the time making of the initial advance under Loan or the Revolving issuance of the initial Letter of Credit or Term Credithereunder, the following conditions precedent shall also have been satisfied:
(a) The the Agent shall have received the following for the account of the Banks Lenders (each to be properly executed and completed) and the same shall have been approved as to form and substance by the Agent and Required BanksLenders:
(i) this Agreement and the Notes;
(ii) copies the Guaranties;
(executed iii) the Collateral Documents and the UCC financing statements requested by the Agent in connection therewith;
(iv) a mortgagee's policy of title insurance (or certified as may be appropriatea binding commitment therefor) for each Bank Mortgage (the "Initial Mortgages") on the following real estate (the "Initial Mortgaged Real Estate") insuring the Lien of such Mortgage in the amount set forth below to be a valid first Lien subject to no defects or objections which are unacceptable to the Agent, together with endorsements (including, without limitation, a revolving credit endorsement and a comprehensive endorsement) as the Agent may require; PROPERTY TITLE INSURANCE COVERAGE Illinois $8,250,000 Iowa (a) Carr▇▇▇ ▇▇▇▇▇▇, ▇▇c. $2,250,000 (b) Mid-Central $2,200,000 North Carolina $4,050,000
(v) an ALTA survey prepared by a licensed surveyor on the Initial Mortgaged Real Estate in Illinois;
(vi) a certification from a licensed surveyor or independent firm acceptable to the Agent as to whether or not any portion of the articles Initial Mortgaged Real Estate is in a designated flood hazard area;
(vii) a report of incorporation, by-laws, operating agreements an independent firm of environmental engineers acceptable to the Agent concerning the environmental hazards and management agreements matters with respect to the Initial Mortgaged Real Estate;
(viii) certified copies of resolutions of the Company Board of Directors of the Borrower and each of its Subsidiaries and of all legal documents or proceedings taken in connection with Guarantor authorizing the execution and delivery of the Loan Documents to delivered by them and indicating the extent the Agent or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority of, and setting forth a specimen signature of, each officer who is to sign any Loan Document;
(iii) a Subsidiary Guaranty from each Subsidiary not a party hereto;
(iv) the ▇▇▇▇▇▇ Guaranty;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as signers of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letterLoan Documents;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full copies of the Term Credit Loans or May 31, 1997, whichever is later articles of incorporation and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full by-laws of the Term Credit Loans Borrower and each Guarantor certified as true and correct by the Secretary or May 31other appropriate officer of the Borrower or such Guarantor, 1997, whichever is lateras the case may be;
(x) copies a good standing certificate for the Borrower and each Guarantor, dated as of all instruments evidencing or setting forth terms and conditions applicable a date no earlier than thirty days prior to the Intersound Sub Debtdate hereof, such terms and conditions to provide, among other things, that no payment from the appropriate governmental office in the jurisdiction of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;its incorporation; and
(xi) a written commitment from an incumbency certificate containing the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy name, title and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment genuine signatures of the initial premium for such policyBorrower's Authorized Representatives; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory for the account of and addressed to it the Lenders the favorable written opinion of counsel for the foregoingBorrower and certain Guarantors in the form attached hereto as Exhibit H;
(c) Nothing the Agent shall have come to received for itself and for the attention of Lenders the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agentinitial fees called for hereby;
(d) The the Agent shall have received assurances a Compliance Certificate showing a computation of the calculation of the Cash Flow Leverage Ratio as of, and after giving effect to, the initial extension of credit hereunder, such computation to be in form and substance reasonably satisfactory to it that the Proforma EBITDA for the Company Agent and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period otherwise in the Company's immediately preceding fiscal yearreasonable detail;
(e) The liens and security interests the Liens granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agenteach Lender and its counsel;
(f) The Agent all conditions precedent to the Mid-Central Acquisition and the SMP Acquisition shall be have been satisfied with insurance except for the Lenders' funding of not more than $26,000,000 of the purchase price for the Mid-Central Acquisition and environmental mattersthe SMP Acquisition and the Lenders shall have received assurances satisfactory to them of the foregoing;
(g) The Company and the Seller Agent shall have received such approvalsand approved as to form and substance: (i) the annual audit report and the Company financial statements for Mid-Central for its fiscal year ending December 31, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and 1997; (ii) an internally prepared balance sheet for the Company and each Subsidiary (other than Mid-Central) as at March 31, 1998 and an internally prepared income statement for the quarter then ended; (iii) the Mid-Central Purchase Agreement for the Mid-Central Acquisition; (iv) the SMP Purchase Agreement for the SMP Acquisition; (v) the due diligence reports relating to operate the Mid-Central Acquisition; and use (vi) the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated field audit by the Intersound Purchase Agreement and the other information furnished Agent of Mid-Central relating to the Banks by or on behalf of the Company and same shall be true and correct in all material respectsMid-Central Acquisition;
(h) The the Agent shall have received a payoff and lien release letter from Banker's Trust Company setting forth, among other things, the total amount of Indebtedness outstanding to it from Mid-Central (including any outstanding letters of credit issued for its own account the fees Mid-Central's account) and Warrants containing an undertaking to cause to be received by it at such time by agreement with delivered to the Agent each UCC termination statement and any other lien release instrument necessary to release Banker's Trust Company's Lien on all Assets on all Property of Mid-Central and its subsidiaries, if any, which payoff and lien release letter shall be in form and substance reasonably acceptable to the Agent; and
(i) The the Agent shall have received for the account of the Banks Lenders such other agreements, instruments, documents, certificates and opinions as the Agent or the Lenders may reasonably request. References in this Section to Subsidiaries shall be deemed to include each Acquiree and its subsidiaries prior to, as well as after, consummation of each of the Mid-Central Acquisition and the SMP Acquisition.
Appears in 1 contract
Initial Advance. At or prior The obligations of the Lenders to the time fund their respective Funding Shares of the initial advance Advance under this Agreement are subject to the Revolving Credit or Term Credit, Companies' fulfillment of the following conditions precedent shall also have been satisfiedprecedent:
(a) The Agent shall have received (or be satisfied that it will receive by such deadline as the following for Agent shall specify) the account following, all of the Banks (each to which must be properly executed and completed) and the same shall have been approved as to satisfactory in form and substance by content to the Agent and Required Banksin its sole discretion:
(i1) this This Agreement and the Notesduly executed by all parties;
(ii2) copies (executed or certified as may be appropriate) for each Bank of the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents or proceedings taken in connection with the execution and delivery of the Loan Documents to the extent the Agent or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority of, and setting forth a specimen signature ofThe Senior Credit Notes, each officer who is to sign any Loan Documentduly executed by the Companies;
(iii3) a Subsidiary Guaranty from each Subsidiary not a party heretoThe Guaranty, duly executed by the Parent;
(iv4) the ▇▇▇▇▇▇ Guaranty12/00 Amendment to Class R Security Agreement of even date herewith;
(v5) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all UCC financing statements requested for the Collateral covered by this Agreement, each duly executed by the Companies, for filing by the Agent in connection with the Initial Collateral Documents) to office of the extent required by Section 5.1 hereofSecretary of State of the State of Pennsylvania (the State in which the chief executive office of each of the Companies is located);
(vi6) evidence a UCC search report of a UCC filings search in the Office of the maintenance Secretary of insurance as required hereby or by State of the Initial Collateral DocumentsState of Pennsylvania (the State in which the chief executive office of each of the Companies is located) for each of the Companies, ABFS 1998-2 and the Parent;
(vii7) a The Custody Agreement duly executed by the Companies and Chase as Custodian;
(8) Copies of each Company's and the Parent's articles or certificate from an authorized of incorporation certified by the Secretary of State or comparable officer of the Company stating whether State of such company's incorporation and a copy of its bylaws certified by such Company's (or the pro forma combined Parent's, as the case may be) secretary or assistant secretary;
(9) A favorable written opinion of counsel to the Companies and consolidated balance sheet the Parent dated on or before the date of the Company initial Advance, addressed to the Lenders and the Agent and in form and substance reasonable satisfactory to the Agent and its Subsidiaries delivered legal counsel (opinions required to be included therein are set forth in Exhibit G);
(10) A copy of the Banks pursuant to Section 6.5 hereofresolutions of each Company's and the Parent's boards of directors, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects certified as of the date the other conditions precedent to of the initial Borrowing under Advance by the relevant Company's or Parent's corporate secretary, authorizing the execution, delivery and performance (i) by each Company of this Section 7.2 are satisfied orAgreement, if notthe Senior Credit Notes, setting forth the differences Custody Agreement and that no Default or Event all other Facilities Papers to be delivered by the Companies pursuant to this Agreement, and (ii) by the Parent of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunderGuaranty, respectively;
(viii11) a payoff letter from A certificate of each holder of Company's and the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees Guarantor's corporate secretary as to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences incumbency of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention officers of the Company executing this Agreement, the Senior Credit Notes, the Custody Agreement, each applicable Request for Advance and all other Facilities Papers executed or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks executed by or on behalf of the Company and same (y) the officers of the Parent executing the Guaranty, respectively, and (ii) the authenticity of their signatures -- and specimens of their signatures shall be true included in such certificate or set forth on an exhibit attached to it -- (the Agent and correct in all material respectsthe Lenders shall be entitled to rely on that certificate until the relevant Company or the Guarantor, as applicable, has furnished a new certificate to the Agent);
(h12) The Agent shall have received An Officer's Certificate for its own account each Company dated the fees date of the initial Advance and Warrants certifying that, after giving effect to be received by it at such time by agreement with that Advance, no Default or Event of Default will exist under this Agreement and that there has been no material adverse change since the Statement Date in any of the Central Elements relative to the Company; and
(i13) The Agent Copies of an errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy, or certificates in lieu of policies, providing such insurance coverage as is customary for members of the Companies' industry, all in form and content reasonably satisfactory to the Agent.
(b) All directors and officers of any Company, all shareholders of any Company and all Affiliates of any Company or the Parent or any Subsidiary of any of the Companies, to whom or which any of the Companies shall be indebted either for borrowed money or for any other obligation of Fifty Thousand Dollars ($50,000) or more as of the date of this Agreement, shall have received for caused such Debt -- excluding only the account debts and obligations described on Schedule 8.1(b) to this Agreement -- to be Subordinated Debt, as defined in this Agreement, by executing and causing to be delivered to the Agent a Subordination Agreement substantially in the form of Exhibit C and taking all other steps, if any, required to cause such Debt to be Subordinated Debt, as so defined, and the corporate secretary of the Banks such other agreements, instruments, documents, certificates and opinions relevant Company or the Parent (as the Agent case may reasonably requestbe) shall have certified each such Subordination Agreement executed to satisfy the requirements of this Subsection to be true, complete and in full force and effect as of the date of the Advance.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (American Business Financial Services Inc /De/)
Initial Advance. At or prior to the time of the initial advance under the Revolving Credit Loans or Term Creditother financial accommodation hereunder, the following conditions precedent shall also have been satisfied:
(a) The the Agent shall have received the following for the account of the Banks Lenders (each to be properly executed and completed) and the same shall have been approved as to form and substance by the Agent and Required BanksAgent:
(i) this Agreement and the Revolving Credit Notes;
(ii) the Guaranties;
(iii) copies (executed or certified as may be appropriate) for each Bank of resolutions of the articles Board of incorporation, by-laws, operating agreements and management agreements Directors of the Company and each of its Subsidiaries Subsidiary authorizing the execution, delivery and of all legal documents or proceedings taken in connection with the execution and delivery performance of the Loan Documents to the extent the Agent or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority of, and setting forth a specimen signature of, each officer who which it is to sign any Loan Document;
(iii) a Subsidiary Guaranty from each Subsidiary not a party heretoand all other documents relating thereto;
(iv) an incumbency certificate containing the ▇▇▇▇▇▇ Guarantyname, title and genuine signature of the Company's Authorized Representatives and each authorized signatory of each Subsidiary;
(v) a good standing certificate for the Initial Collateral Documents Company and any documentation necessary to perfect the liens thereby created (includingeach Subsidiary, without limitation, all certificates dated as of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) a date no earlier than 30 days prior to the extent required by Section 5.1 date hereof, from the appropriate governmental offices in the state of its incorporation and in each state in which it is qualified to do business as a foreign corporation;
(vi) evidence articles of incorporation and by-laws for the maintenance of insurance as required hereby Company and each Subsidiary certified by such Person's corporate Secretary or by other appropriate officer acceptable to the Initial Collateral Documents;Agent; and
(vii) a certificate pay-off letter from an authorized officer each lender to the Company and its Subsidiaries whose debt is being satisfied out of the Company stating whether initial Borrowing hereunder, each pay-off letter to be in form and substance reasonably satisfactory to the pro forma combined Agent (without limiting the foregoing, each such pay-off letter shall contain an undertaking of the relevant lender to execute and consolidated balance sheet deliver to the Agent all necessary UCC termination statements and other lien release documents necessary to release all liens and security interests filed in favor of such lender against the property of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceledSubsidiaries), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;.
(b) All conditions precedent all legal matters incident to the Intersound Acquisition transactions contemplated hereby shall have been satisfied (without deviation from be acceptable to the Intersound Purchase Agreement Lenders and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor their counsel, and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respects;
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks Lenders the favorable written opinion of counsel to the Company and its Subsidiaries, in the form of Exhibit E hereto or in such other form as is reasonably acceptable to the Agent and its counsel;
(c) the Agent shall have received for itself and for the Lenders the initial fees, if any, called for hereby;
(d) the Company shall have delivered to each of the Lenders a Compliance Certificate substantially in the form attached hereto as Exhibit D showing compliance with the financial covenants set forth in Sections 7.7, 7.8 and 7.9 hereto as of December 31, 1996, and a pro forma Compliance Certificate substantially in the form attached hereto as Exhibit D showing compliance with the financial covenants set forth in Sections 7.7, 7.8 and 7.9 hereof after giving effect to the Creative Concepts Acquisition; and
(e) the Agent shall have received for the account of the Lenders such other agreements, instruments, documents, certificates and opinions as the Agent may reasonably request.
Appears in 1 contract
Initial Advance. At or prior Lenders will not be obligated to fund the time initial Loan, and Agent will not be obligated to issue the initial L/C, unless Agent has received each of the initial advance under items in (a) - (g) and the Revolving Credit or Term Credit, the following conditions precedent shall also in items (h) - (i) have been satisfied:
(a) The Agent shall have received the following for the account of the Banks (each to be properly executed and completed) and the same shall have been approved as to form and substance by the Agent and Required Banks:
(i) this Agreement and the Promissory Notes;
(iib) copies a Guaranty executed by each Restricted Company (other than Borrower) or, for any Restricted Company which has previously executed a Guaranty, at Agent's election, a consent or certified as may be appropriateratification by such Restricted Company of its existing Guaranty;
(c) a Pledge Agreement executed by the holder of the capital stock or other equity interests of each Restricted Company, other than those set out in the Post-Closing Agreement, pledging that capital stock or those interests, and a Pledge Agreement (or a ratification agreement) executed by Borrower in respect of its interest in SSI;
(d) an Officers' Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or agreements, resolutions, and incumbency;
(e) Certificates of Existence and Good Standing (Account Status) for each Bank Restricted Company from its state of the articles of incorporation, by-laws, operating agreements and management agreements of the Company organization and each of its Subsidiaries and of all legal documents or proceedings taken in connection with the execution and delivery of the Loan Documents to the extent the Agent or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority of, and setting forth a specimen signature ofother state where it does business, each officer who is to sign any Loan Documentdated after September 15, 2001;
(iiif) a Subsidiary Guaranty from each Subsidiary not a party hereto;
(iv) the Legal opinions of ▇▇▇▇▇▇ Guaranty;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences ▇▇▇▇, General Counsel of such Existing Bank Debt and (iii) release its liens securing such Existing Bank DebtVRI, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for & ▇▇▇▇▇▇'▇ provision of management services ▇, special New York counsel to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental mattersBorrower;
(g) The Company Borrower's audited consolidated and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and consolidating Financial Statements for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respects2001;
(h) The Payment in full of all amounts then due Agent shall have received for its own account under Section 8.7 or the fees and Warrants to be received by it at such time by agreement with the Companyfee letters described in Section 4; and
(i) The Agent shall have received for Since July 31, 2001, no change has occurred in the account business, assets, liabilities, operations, conditions (financial or otherwise) or prospects of the Banks such Companies and no Litigation or other agreementsproceeding or investigation in respect of any Company has been initiated or threatened, instrumentswhich, documentsin either case, certificates and opinions as the Agent may reasonably requestwould constitute a Material Adverse Event.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Initial Advance. At or prior The obligation of the Lender to make the initial Advance under this Agreement is subject to the time satisfaction, in the sole discretion of the initial advance under Lender, on or before the Revolving Credit or Term Creditdate thereof, of the following conditions precedent shall also have been satisfied:
precedent: (a) a0 The Agent Lender shall have received the following for the account following, all of the Banks (each to which must be properly executed and completed) and the same shall have been approved as to satisfactory in form and substance by content to the Agent and Required BanksLender, in its sole discretion:
(i1 The Loan Documents dated as of the date hereof duly executed by the Borrowers;
(2 Certified copies of each Borrower's articles of incorporation and bylaws and certificates of good standing dated no less recently than ninety (90) days prior to the date of this Agreement and, with respect to each Borrower, a certification from the taxing authority of the state of incorporation stating that the applicable Borrower is in good standing with said taxing authority:
(3 An original resolution of the board of directors of each Borrower, certified as of the date of this Agreement by its corporate secretary, authorizing the execution, delivery and performance of this Agreement and the Notes;
(ii) copies (executed or certified as may be appropriate) for each Bank of the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents or proceedings taken in connection with the execution and delivery of the other Loan Documents to the extent the Agent or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority ofDocuments, and setting forth a specimen signature of, each officer who is all other instruments or documents to sign any Loan Document;
(iii) a Subsidiary Guaranty from each Subsidiary not a party hereto;
(iv) the ▇▇▇▇▇▇ Guaranty;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested be delivered by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks such Borrower pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b4 A certificate (in the form of EXHIBIT "J-1" OR "J-2", as the case may be) All conditions precedent of each Borrower's corporate secretary as to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any resolution of the conditions precedent to closing set forth in board of directors of such Borrower authorizing the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding execution, delivery and performance of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase this Agreement and the other information Loan Documents and the incumbency and authenticity of the signatures of the officers of such Borrower executing this Agreement and the other Loan Documents and each Advance Request and all other instruments or documents to be delivered pursuant hereto (the Lender being entitled to rely thereon until a new such certificate has been furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respectsLender);
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions as the Agent may reasonably request.
Appears in 1 contract
Sources: Warehousing Credit and Security Agreement (Hanover Capital Mortgage Holdings Inc)
Initial Advance. At or prior to the time making of the initial advance under the Revolving Credit or Term Creditextension of credit hereunder, the following conditions precedent shall also have been satisfied:
(a) The the Agent shall have received the following for the account of the Banks Lenders (each to be properly executed and completed) and the same shall have been approved as to form and substance by the Agent and Required BanksAgent:
(i) this Agreement and the Revolving Notes;
(ii) the Swing Note;
(iii) the Security Agreements;
(iv) the Guaranty Agreement;
(v) UCC Financing Statements to be filed against the Company and each Subsidiary, as debtor, in favor of the Agent, as secured party;
(vi) the Agent shall have received evidence of insurance required to be maintained under the Loan Documents, naming the Agent as loss payee;
(vii) copies (executed or certified certified, as may be appropriate) for each Bank of the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents or proceedings taken in connection with the execution and delivery of this Agreement and the other Loan Documents to the extent the Agent or its counsel may reasonably request; and
(viii) an incumbency certificate containing the name, includingtitle and genuine signatures of each of the Company's Authorized Representatives.
(b) the Agent and the Lenders shall have received the initial fees (if any) called for hereby;
(c) the Agent shall have received a Y2K Questionnaire in form and substance acceptable to the Agent duly completed by the Company;
(d) each Lender shall have received such evaluations and certifications as it may reasonably require (including a Borrowing Base Certificate in the form attached hereto as Exhibit F, without limitation, certificates containing calculations of the Borrowing Base and compliance calculations of the financial covenants as of the date of this Agreement) in order to satisfy itself as to the incumbency and authority of, and setting forth a specimen signature of, each officer who is to sign any Loan Document;
(iii) a Subsidiary Guaranty from each Subsidiary not a party hereto;
(iv) the ▇▇▇▇▇▇ Guaranty;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock value of the Subsidiaries which are corporations together with executed blank stock powers thereforCollateral, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet financial condition of the Company and its Subsidiaries delivered to Subsidiaries, and the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all lack of material respects as contingent liabilities of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences Company and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunderits Subsidiaries;
(viiie) a payoff letter from each holder the Agent shall have received financing statement, tax and judgment lien search results against the Property of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which Company and each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to Subsidiary evidencing the relevant borrower all promissory notes and other evidences absence of such Existing Bank Debt and (iii) release Liens on its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letterProperty except as permitted by Section 8.8 hereof;
(ixf) an employment the Agent shall have received pay-off and non-compete agreement between lien release letters from secured creditors of the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or each Subsidiary setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provideforth, among other things, that no payment the total amount of principal, interest indebtedness outstanding and owing to them (or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment outstanding letters of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security credit issued for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention account of the Company or any Subsidiary) and containing an undertaking to cause to be delivered to the Agent or UCC termination statements and any Bank which indicates that other lien release instruments necessary to release their Liens on the capital structure and condition (financial and otherwise) and prospects assets of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will each Subsidiary, which pay-off and lien release letters shall be detrimentally at variance, in any material respect, from those presumed in the Approved Projections form and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company substance acceptable to the Agent;
(dg) The the Agent shall have received such assurances as it may reasonably satisfactory require in order to it that the Proforma EBITDA for satisfy itself the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period its Subsidiaries are current in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings payment of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respectstheir rent expense;
(h) The Agent legal matters incident to the execution and delivery of this Agreement and the other Loan Documents and to the transactions contemplated hereby shall have received for be satisfactory to each Lender and its own account counsel; and the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks Lenders the written opinion of counsel for the Company in form and substance satisfactory to the Lender and its counsel; and
(i) the Agent shall have received for the account of the Lenders such other agreements, instruments, documents, certificates and opinions as the Agent or the Lenders may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Anicom Inc)
Initial Advance. At On or prior to the time of Closing Date, Borrower shall have delivered to the initial advance under Lenders and Agents the Revolving Credit or Term Credit, the following conditions precedent shall also have been satisfiedfollowing:
(a) The Agent shall have received the following for the account d▇▇▇ executed copies of the Banks (each to be properly executed and completed) and the same shall have been approved as to following, in form and substance by the Agent acceptable to L▇▇▇▇▇▇ and Required BanksAgents:
(i) this Agreement and the NotesAgreement;
(ii) copies (executed or certified Account Control Agreements with respect to all Deposit Accounts and any accounts where Investment Property is maintained, as may be appropriate) for each Bank of required by Section 7.12 hereof, including the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents or proceedings taken in connection with the execution and delivery of the Loan Documents to the extent the Agent or its counsel may reasonably request, including, without limitation, certificates as to the incumbency and authority of, and setting Account Control Agreements set forth a specimen signature of, each officer who is to sign any Loan Documenton Schedule 4.1;
(iii) a Subsidiary Guaranty from duly executed certificate of an officer of each Subsidiary not Loan Party certifying and attaching copies of (A) the Charter, certified as of a party heretorecent date by the jurisdiction of organization of such Loan Party as in effect as of the Closing Date; (B) the bylaws, operating agreement or similar governing document of such Loan Party, as in effect as of the Closing Date; (C) resolutions of such Loan Party’s Board (or similar governing body) evidencing approval of the Loan and other transactions contemplated by the Loan Documents, as in effect as of the Closing Date; (D) resolutions of the holders of such Loan Party’s Equity Interests in connection with the transactions contemplated by this Agreement as in effect as of the Closing Date, to the extent required by the applicable Organizational Documents; and (E) a schedule setting forth the name, title and specimen signature of officers or other authorized signers on behalf of each Loan Party;
(iv) a duly executed certificate of an officer of Borrower certifying and attaching copies of (A) the ▇▇▇▇▇▇ GuarantyCharter, certified as of a recent date by the jurisdiction of organization of each Platform Company, as in effect as of the Closing Date; (B) the bylaws, operating agreement or similar governing document of each Platform Company; (C) copies of all Equity Documents in effect as of the Closing Date; and (D) a summary capitalization table of each Platform Company;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates a legal opinion of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for B▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later▇’s counsel;
(xvi) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among any other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policyLoan Documents; and
(xiivii) a written acknowledgment from Intersound all other documents and instruments reasonably required by Lenders or Agents to effectuate the transactions contemplated hereby or to create and perfect the Liens of the collateral assignment Collateral Agent with respect to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;all Collateral.
(b) All conditions precedent all originals certificates evidencing Pledged Collateral pledged pursuant to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement Section 3.3, together with any transfer powers or other instruments of transfer, in form and without waiver by the Company of any of the conditions precedent substance acceptable to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoingLenders;
(c) Nothing shall have come to the attention copies of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at varianceall consents, in any material respectwaivers, from those presumed in the Approved Projections and the other pro forma balance sheets notices and other financial materials documents set forth on the Company and Intersound heretofore most recently submitted by the Company to the AgentSchedule 5.15(ii);
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA a certificate of good standing for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA each Loan Party from its jurisdiction of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal yearorganization;
(e) The liens payment of any fees due and security interests granted to the Agent payable under the Collateral Documents shall have been perfected Fee Letters and reimbursement of Agent’s and each L▇▇▇▇▇’s current expenses reimbursable pursuant to this Agreement, which amounts may be deducted from the extent required by Section 5.1 hereof in a manner satisfactory to the Agentinitial Advance;
(f) The Agent shall be satisfied with all certificates of insurance, endorsements, and copies of each insurance and environmental matterspolicy required pursuant to Section 6.2;
(g) The Company and the Seller Refinancing shall have received such approvalsbeen or, exemptionssubstantially concurrently with the initial Advance hereunder, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respectsconsummated;
(h) The Agent shall the Lenders will have received for its own account all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations including the fees and Warrants PATRIOT Act at least [***] Business Days prior to be received by it the Closing Date, to the extent requested from the Borrower, at such time by agreement with least [***] Business Days prior to the CompanyClosing Date; and
(i) The Agent such other documents as Lenders or Agents may reasonably request (which documents shall have received for include the account Perfection Certificate). Notwithstanding the foregoing, to the extent any of the Banks such other agreementsabove closing conditions is set forth on Schedule 7.19, instruments, documents, certificates and opinions as Borrower may deliver the Agent may reasonably requestsame when required to be delivered pursuant to Schedule 7.19.
Appears in 1 contract
Sources: Loan and Security Agreement (BridgeBio Pharma, Inc.)
Initial Advance. At or prior to the time making of the initial advance under the Revolving Credit or Term Creditextension of credit hereunder, the following conditions precedent shall also have been satisfied:
(a) The the Agent shall have received the following for the account of the Banks Lenders (each to be properly executed and completed) and the same shall have been approved as to form and substance by the Agent and Required BanksAgent:
(i) this Agreement and the A Notes;
(ii) the Guaranties (if any);
(iii) certified copies (executed or certified as may be appropriate) for each Bank of resolutions of the articles Board of incorporation, by-laws, operating agreements and management agreements Directors of the Company and each of its Subsidiaries and of all legal documents or proceedings taken in connection with Guarantor authorizing the execution and delivery of this Agreement, the Loan Documents to Notes and the extent the Agent or its counsel may reasonably requestGuaranties, including, without limitation, certificates as to the incumbency and authority of, and setting forth a specimen signature of, each officer who is to sign any Loan Document;
(iii) a Subsidiary Guaranty from each Subsidiary not a party heretoappropriate;
(iv) copies of the ▇▇▇▇▇▇ Guaranty;articles of incorporation and by-laws of the Company and each Guarantor certified by the Secretary or other appropriate officer of the Company or such Guarantor, as the case may be; and
(v) an incumbency certificate containing the Initial Collateral Documents name, title and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates genuine signatures of capital stock each of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which (i) obligates ▇▇▇▇▇▇ not to compete with the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, that no payment of principal, interest or premium (if any) shall be required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy to be assigned by the Life Insurance Assignment to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River NorthCompany's indemnification rights under the Intersound Purchase Agreement;Authorized Representatives.
(b) All conditions precedent legal matters incident to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement execution and without waiver by the Company delivery of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase this Agreement and the other information furnished Loan Documents and to the Banks by or on behalf of the Company and same transactions contemplated hereby shall be true reasonably satisfactory to each Lender and correct in all material respects;
(h) The Agent shall have received for its own account counsel; and the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions Lenders the favorable written opinion of counsel for the Company in form set forth as Exhibit 7.2(c) hereof;
(c) the Agent may reasonably request.shall have received for the account of the Lenders a good standing certificate for the Company (dated as of the date no earlier than thirty (30) days prior to the date hereof) from the office of the secretaries of state of the states of Illinois and Iowa;
(d) the Agent shall have received for the account of the Lenders a good standing certificate for each Guarantor (dated as of the date no earlier than thirty (30) days prior to the date hereof) from the office of the secretary of the state in which such Guarantor was incorporated or formed;
(e) The proceeds of such initial credit shall be used to pay in full all outstanding "Obligations" under the Existing Credit Agreement except to the extent such "Obligations" constitute a "LIBOR Portions," in which event such "Obligations" shall be deemed A Loans made by the same Lender hereunder evidenced by the relevant A Notes issued to such Lender, with interest on each such "LIBOR Portion" to be due and payable at the end of the "Interest Period" applicable thereto at the time such "LIBOR Portion" becomes evidenced by the A Notes and the interest applicable to each such "LIBOR Portion" to continue at the rate which would otherwise applicable thereto under the Existing Credit Agreement (except that the "Applicable Margin" under the Existing Credit Agreement shall be deemed the Applicable Margin hereunder). The Lenders and the Company agree that concurrently with such initial credit, the Existing Credit Agreement shall terminate and all "Obligations" outstanding thereunder (except for such "LIBOR Portions") shall be due and payable; and
Appears in 1 contract
Initial Advance. At or prior Lenders will not be obligated to fund the time initial Loans hereunder, and the L/C Issuers will not be obligated to issue the initial L/Cs hereunder, unless Administrative Agent has received each of the initial advance under items in clauses (a) through (k) below, each in form and substance satisfactory to Administrative Agent and each of the Revolving Credit or Term CreditLenders, and the following conditions precedent shall also in clauses (l) and (m) below have been satisfied:satisfied (other than each item listed on Schedule 7.1, which items are hereby permitted to be delivered or satisfied after the Closing Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) The an executed counterpart of this Agreement, sufficient in number for distribution to Administrative Agent, each Lender, and ▇▇▇▇▇▇▇▇;
(b) (i) with respect to any Revolver Lender requesting a Revolver Note pursuant to Section 3.1(a), a Revolver Note, payable to the order of such requesting Revolver Lender, as contemplated in Section 3.1(a), and (ii) with respect to any Term Loan Lender requesting a Term Loan Note pursuant to Section 3.1(a), a Term Loan Note, payable to the order of such requesting Term Loan Lender, as contemplated in Section 3.1(a), and (iii) if requested by either Swing Line Lender pursuant to Section 3.1(a), a Swing Line Note, payable to such Swing Line Lender;
(c) from any Restricted Company (other than Borrower) organized under the Laws of the United States (or any state thereof) (i) that has not previously executed a Guaranty, a Guaranty executed by such Restricted Company, or (ii) that has previously executed a Guaranty, a Confirmation of Guaranty executed by such Restricted Company;
(d) from any Restricted Company organized under the Laws of the United States (or any state thereof) holding capital stock or other equity interests of any Restricted Subsidiary (other than stock in the North Star Subsidiaries and the Concessioner Subsidiaries), (i) that has not previously executed a Pledge Agreement, a Pledge Agreement executed by such Person, pledging the portion of such capital stock or other equity interests required pursuant to Section 6.2, or (ii) that has previously executed a Pledge Agreement, a Confirmation of Pledge Agreement executed by such Person;
(e) an Officers’ Certificate for each Restricted Company, relating to articles of incorporation or organization, bylaws, regulations, or operating agreements, resolutions, and incumbency, as applicable;
(f) Certificates of Existence and Good Standing (Account Status) for each domestic Restricted Company from its state of organization, each dated as of a recent date;
(g) Legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel, Corporate Governance & Securities of VRI, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special New York counsel to the Restricted Companies, and such local counsel as Administrative Agent shall have received the following for the account of the Banks (request, each to be properly executed and completed) and the same shall have been approved as to in form and substance satisfactory to Administrative Agent;
(h) a certificate signed by the Agent and Required Banks:
a Responsible Officer certifying that (i) this Agreement all of the representations and warranties of the Notes;
Companies in the Loan Papers are true and correct in all material respects (except to the extent qualified by materiality, in which case they shall be true and correct); (ii) copies no Default or Potential Default exists under the Existing Agreement; (executed iii) no Default or certified as may be appropriate) for each Bank of the articles of incorporation, by-laws, operating agreements and management agreements of the Company and each of its Subsidiaries and of all legal documents Potential Default exists or proceedings taken in connection with would result from the execution and delivery of the Loan Documents Papers or the proposed funding of the Loans or issuance of L/Cs on the Closing Date; (iv) there has been no event or circumstance since July 31, 2017 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (v) except as set forth on Schedule 8.7, there is no action, suit, investigation, or proceeding pending or, to the extent knowledge of Borrower, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to result in a Material Adverse Event;
(i) evidence that all insurance required to be maintained pursuant to the Agent or its counsel may Loan Papers has been obtained and is in effect;
(j) with respect to any Lender that reasonably requestrequests at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, certificates as the Act, in each case at least 3 days prior to the incumbency and authority ofClosing Date.
(k) at least 5 days prior to the Closing Date, and setting forth any Borrower that qualifies as a specimen signature of“legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each officer who is Lender that so requests, a Beneficial Ownership Certification in relation to sign any Loan Documentsuch Borrower;
(iiil) a Subsidiary Guaranty from each Subsidiary not a party hereto;payment of all fees payable on or prior to the Closing Date to Administrative Agent, any Related Party of Administrative Agent, and any Lender as provided for in Section 5; and
(ivm) the unless waived by Administrative Agent, payment in full of all reasonable fees, expenses, and disbursements of ▇▇▇▇▇▇ Guaranty;
(v) the Initial Collateral Documents and any documentation necessary to perfect the liens thereby created (including, without limitation, all certificates of capital stock of the Subsidiaries which are corporations together with executed blank stock powers therefor, and with all financing statements requested by the Agent in connection with the Initial Collateral Documents) to the extent required by Section 5.1 hereof;
(vi) evidence of the maintenance of insurance as required hereby or by the Initial Collateral Documents;
(vii) a certificate from an authorized officer of the Company stating whether the pro forma combined and consolidated balance sheet of the Company and its Subsidiaries delivered to the Banks pursuant to Section 6.5 hereof, the Approved Projections and Schedules 6.3 and 6.5 hereto are accurate in all material respects as of the date the other conditions precedent to the initial Borrowing under this Section 7.2 are satisfied or, if not, setting forth the differences and that no Default or Event of Default exists as of such date or will occur after giving effect to the initial Borrowing hereunder;
(viii) a payoff letter from each holder of the Existing Bank Debt (or a duly appointed trustee or agent for such holder) in which each such party agrees to (i) cancel each loan or other agreement governing such Existing Bank Debt (or stating that all such loan and other agreements shall automatically be canceled), (ii) ▇▇▇▇ "Canceled" or "Paid" and returned to the relevant borrower all promissory notes and other evidences of such Existing Bank Debt and (iii) release its liens securing such Existing Bank Debt, in each case upon receipt of the payoff amount stated in such letter;
(ix) an employment and non-compete agreement between the Company and ▇▇▇▇▇▇ which , LLP and, without duplication, the reasonably allocated cost of internal legal services and all reasonable expenses and disbursements of internal counsel (icollectively, “Attorney Costs”) obligates of Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided, that such estimate shall not thereafter preclude a final settling of accounts between ▇▇▇▇▇▇▇▇ not to compete and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 14.5, for purposes of determining compliance with the Company for a period ending no earlier than repayment conditions specified in full of the Term Credit Loans or May 31this Section 7.1, 1997, whichever is later and (ii) provides for ▇▇▇▇▇▇'▇ provision of management services to the Company for a period ending no earlier than repayment in full of the Term Credit Loans or May 31, 1997, whichever is later;
(x) copies of all instruments evidencing or setting forth terms and conditions applicable to the Intersound Sub Debt, such terms and conditions to provide, among other things, each Lender that no payment of principal, interest or premium (if any) has signed this Agreement shall be deemed to have consented to, approved or accepted, or been satisfied with each document or other matter required on the Intersound Sub Debt prior to May 31, 1997;
(xi) a written commitment from the insurer on the life insurance policy thereunder to be assigned by the Life Insurance Assignment consented to issue such policy and acknowledge the Life Insurance Assignment, in each case within thirty (30) days after the date hereof, such commitment to be subject to no condition other than payment of the initial premium for such policy; and
(xii) a written acknowledgment from Intersound of the collateral assignment to the Agent as security for the Obligations of River North's indemnification rights under the Intersound Purchase Agreement;
(b) All conditions precedent to the Intersound Acquisition shall have been satisfied (without deviation from the Intersound Purchase Agreement and without waiver by the Company of any of the conditions precedent to closing set forth in the Intersound Purchase Agreement (except for waivers or approved by the Agent)) except for the Banks' funding of not more than $23,900,000 of the cash purchase price therefor and the or acceptable or satisfactory to a Lender, unless Administrative Agent shall have received evidence satisfactory to it of the foregoing;
(c) Nothing shall have come notice from such Lender prior to the attention of the Company or the Agent or any Bank which indicates that the capital structure and condition (financial and otherwise) and prospects of the Company or Intersound (including without limitation their respective current assets and proposed Closing Date specifying its current liabilities) will be detrimentally at variance, in any material respect, from those presumed in the Approved Projections and the other pro forma balance sheets and other financial materials on the Company and Intersound heretofore most recently submitted by the Company to the Agent;
(d) The Agent shall have received assurances reasonably satisfactory to it that the Proforma EBITDA for the Company and Intersound for the Company's monthly accounting period ending December 31, 1996 was higher than the Proforma EBITDA of the Company and Intersound for the corresponding monthly accounting period in the Company's immediately preceding fiscal year;
(e) The liens and security interests granted to the Agent under the Collateral Documents shall have been perfected to the extent required by Section 5.1 hereof in a manner satisfactory to the Agent;
(f) The Agent shall be satisfied with insurance and environmental matters;
(g) The Company and the Seller shall have received such approvals, exemptions, consents or withholdings of objection from Governmental Bodies as are necessary in order to lawfully consummate the Intersound Acquisition and for the Company to operate and use the properties and rights to be acquired in the Intersound Acquisition substantially as contemplated by the Intersound Purchase Agreement and the other information furnished to the Banks by or on behalf of the Company and same shall be true and correct in all material respects;
(h) The Agent shall have received for its own account the fees and Warrants to be received by it at such time by agreement with the Company; and
(i) The Agent shall have received for the account of the Banks such other agreements, instruments, documents, certificates and opinions as the Agent may reasonably requestthereto.
Appears in 1 contract
Sources: Eighth Amended and Restated Credit Agreement (Vail Resorts Inc)