CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligations of Lender to make Term Loan C and the Advances and to issue Letters of Credit shall not become effective until the date on which the following conditions shall have been satisfied, and Lender shall have received all of the following, in form and substance reasonably satisfactory to Lender: (i) executed originals of each of: (1) this Agreement; (2) the Line of Credit Note; (3) the Term Loan C Note; (4) the Amended and Restated Borrower Security Agreement between Borrower and Lender, the Amended and Restated Guarantor Security Agreement between Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC, Psyop Games, LLC and Lender; (5) a Joinder and Confirmation from Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC and Psyop Games, LLC, to Lender; (6) a Supplement to Trademark Security Agreement executed by Massmarket Media Services, LLC; and (7) the certificates and other documents required to be delivered under the Amended and Restated Borrower Security Agreement (collectively, the “Closing Documents”); (ii) a certificate of the Secretary of each Obligor which shall certify (a) resolutions of the members of each Obligor evidencing approval of each of the Closing Documents to which such Obligor is or will be a party and the other matters contemplated hereby and thereby; (b) the names and true signatures of the officers of such Obligor authorized to sign each of the Closing Documents to which such Obligor is or will be a party and the other documents or certificates to be delivered pursuant to this Agreement by such Obligor or any of its officers; (c) with respect to Borrower and to Guarantors in existence on February 29, 2012, that there has been no change to the Organizational Documents of such Obligors since such date (or, if there has been such change, attaching copies of the amended Organizational Documents); (iii) certificates of good standing from the Secretary of State of the State of Delaware with respect to the legal existence of each Obligor; (iv) with respect to Guarantors not in existence on February 29, 2012, (x) a copy of the certificate of formation of each such Guarantor certified by the Secretary of State of the State of Delaware, and (y) a copy of the operating agreement of each such Guarantor certified by the Secretary of such Guarantor; (v) evidence that (x) Lender holds a perfected, first priority Lien on all Collateral, and (y) none of such Collateral is subject to any other Liens other than Permitted Liens; (vi) payment of the non-refundable fees and disbursements of Lender’s independent counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ LLP, for the preparation of this Agreement and the instruments, documents and agreements delivered pursuant hereto to the extent invoiced prior to or on the Closing Date, plus such additional amounts as shall constitute Lender’s reasonable estimate of any such fees and expenses 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 Borrower and Lender with respect thereto); (vii) an opinion of counsel for Obligors, dated the Closing Date, addressed to Lender and containing the opinions set forth on Exhibit C or other opinions acceptable to Lender; and (viii) such other documents, instruments, certificates and opinions as Lender may reasonably request in connection with the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Loan Agreement (PCI Media, Inc.)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligations obligation of Lender to make Term the initial Advance or other initial extension of credit under this Agreement is subject to the fulfillment to Lender's satisfaction of each of the following conditions: (i) all Loan C Documents and all other documents relating to this Agreement will have been executed and delivered, and Lender will have received copies of each Loan Party’s organizational documents, satisfactory authorizing resolutions and recent good standing certificates for each Loan Party, (ii) Lender will have confirmed to its satisfaction that there has been no Material Adverse Change since the date of the last financial statements provided to Lender, (iii) Uniform Commercial Code and other searches and all Uniform Commercial Code and other filings deemed necessary by Lender will have been completed and will have confirmed Lender’s first-priority Liens in the Collateral and the Advances results thereof will be otherwise satisfactory to Lender, (iv) all insurance policies and to issue Letters of Credit shall not become effective until other documents, agreements and actions required by this Agreement and the date on which the following conditions shall other Loan Documents will have been satisfiedcompleted and will be in place, and (v) no event which would constitute a Default or an Event of Default will have occurred, (vi) Lender will have received all required Collateral Access Agreements, (vii) Lender shall have received all financial information of each Loan Party required by this Agreement, including, without limitation, all financial projections, (viii) Lender will have completed its business, legal, and Collateral due diligence, including (a) a Collateral examination, appraisals and review of each Loan Party’s books and records and verification of each Loan Party’s representations and warranties to Lender, the results of which must be satisfactory to Lender, and (b) an inspection of each of the followinglocations where the Inventory of each Loan Party is located, the results of which must be satisfactory to Lender; (ix) Borrowers will have Excess Availability of at least $500,000 after giving effect to (A) the initial Advance and other initial extensions of credit under this Agreement, and (B) the payment of all fees and Lender Expenses required to be paid by Borrowers on the Closing Date under this Agreement or the other Loan Documents; (x) Lender will have obtained final credit approval, (xi) a letter, acceptable to Lender, from W▇▇▇▇ Fargo Bank, National Association (“Existing Lender”) to Lender confirming the amount necessary to repay in full all of the obligations of the Loan Parties and its Subsidiaries owing to Existing Lender and obtain a release of all of the Liens existing in favor of Existing Lender in and to the assets of the Loan Parties and their Subsidiaries, (xii) Lender shall have received an opinion of Borrowers’ counsel in form and substance reasonably satisfactory acceptable to Lender; (xiii) each Loan Party will have received all licenses, approvals and certifications required by any governmental authority necessary in connection with the execution of this Agreement and the Loan Documents and the completion of the transactions contemplated by this Agreement, and (xiv) all other conditions required by Lender shall have been fulfilled to Lender’s satisfaction and all other deliverables required by Lender shall have been delivered to Lender’s satisfaction, including without limitation the following:
(ia) a Guaranty Agreement executed originals of by each of:
(1) this AgreementGuarantor on Lender’s standard form;
(2b) Control Agreements executed by the Line of Credit Noteapplicable Loan Party and each Controlled Account Bank and implemented by the Controlled Account Bank;
(3c) the Term Loan C Note;
Lender shall have entered into an acceptable Intercreditor Agreement with Cree (4) the Amended and Restated Borrower Security Agreement between Borrower and Lender, the Amended and Restated Guarantor Security Agreement between Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC, Psyop Games, LLC and Lender;
(5) a Joinder and Confirmation from Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC and Psyop Games, LLC, to Lender;
(6) a Supplement to Trademark Security Agreement executed by Massmarket Media Services, LLC“Cree Intercreditor Agreement”); and
(7d) the certificates and other documents required to be delivered under the Amended and Restated Borrower Security Agreement (collectively, the “Closing Documents”);
(ii) Lender shall have received a certificate of the Secretary of each Obligor which shall certify (a) resolutions of the members of each Obligor evidencing approval of each of the Closing Documents to which such Obligor is or will be a party and the other matters contemplated hereby and thereby; (b) the names and true signatures of the officers of such Obligor authorized to sign each of the Closing Documents to which such Obligor is or will be a party and the other documents or certificates to be delivered pursuant to this Agreement by such Obligor or any of its officers; (c) with respect to Borrower and to Guarantors in existence on February 29, 2012, that there has been no change to the Organizational Documents of such Obligors since such date (or, if there has been such change, attaching copies of the amended Organizational Documents);
(iii) certificates of good standing from the Secretary of State of the State of Delaware with respect to the legal existence of each Obligor;
(iv) with respect to Guarantors not in existence on February 29, 2012, (x) a fully executed copy of the certificate of formation of each such Guarantor certified Exclusive Supply Agreement by the Secretary of State of the State of Delaware, and (y) a copy of the operating agreement of each such Guarantor certified by the Secretary of such Guarantor;
(v) evidence that (x) Lender holds a perfected, first priority Lien on all Collateral, and (y) none of such Collateral is subject to any other Liens other than Permitted Liens;
(vi) payment of the non-refundable fees and disbursements of Lender’s independent counsel, between C▇▇▇▇▇▇ & C▇▇▇▇▇▇▇, Ltd. and Cree, Inc. (the “Cree Agreement”) which shall (i) have a term of at least two (2) years following the Closing Date and permit Borrowers to unilaterally extend the agreement for additional term of at least one year and (ii) effective on or prior to the Closing Date, replace all references therein to “W▇▇▇▇ LLPFargo” with “White Oak Commercial Finance, for the preparation of this Agreement and the instruments, documents and agreements delivered pursuant hereto to the extent invoiced prior to or on the Closing Date, plus such additional amounts as shall constitute Lender’s reasonable estimate of any such fees and expenses 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 Borrower and Lender with respect thereto);
(vii) an opinion of counsel for Obligors, dated the Closing Date, addressed to Lender and containing the opinions set forth on Exhibit C or other opinions acceptable to Lender; and
(viii) such other documents, instruments, certificates and opinions as Lender may reasonably request in connection with the consummation of the transactions contemplated herebyLLC.
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligations obligation of Lender to make Term the initial Advance or other initial extension of credit under this Agreement is subject to the fulfillment to Lender's satisfaction of each of the following conditions: (i) all Loan C Documents and all other documents relating to this Agreement will have been executed and delivered, and Lender will have received copies of each Loan Party’s organizational documents, satisfactory authorizing resolutions and recent good standing certificates for Borrower, (ii) Lender will have confirmed to its satisfaction that there has been no Material Adverse Change since the date of the last financial statements provided to Lender, (iii) Uniform Commercial Code and other searches and all Uniform Commercial Code and other filings deemed necessary by Lender will have been completed and will have confirmed Lender’s first-priority Liens in the Collateral and the Advances results thereof will be otherwise satisfactory to Lender, (iv) all insurance policies and to issue Letters of Credit shall not become effective until other documents, agreements and actions required by this Agreement and the date on which the following conditions shall other Loan Documents will have been satisfiedcompleted and will be in place, and (v) no event which would constitute a Default or an Event of Default will have occurred, (vi) Lender will have received all required Collateral Access Agreements, (vii) Lender shall have received all financial information of the followingLoan Parties required by this Agreement, in form including, without limitation, all financial projections, (viii) Lender will have completed its business, legal, and substance reasonably Collateral due diligence, including (a) a Collateral examination and review of the Loan Parties’ books and records and verification of the Loan Parties’ representations and warranties to Lender, the results of which must be satisfactory to Lender:
, and (ib) executed originals of each of:
(1) this Agreement;
(2) the Line of Credit Note;
(3) the Term Loan C Note;
(4) the Amended and Restated Borrower Security Agreement between Borrower and Lender, the Amended and Restated Guarantor Security Agreement between Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC, Psyop Games, LLC and Lender;
(5) a Joinder and Confirmation from Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC and Psyop Games, LLC, to Lender;
(6) a Supplement to Trademark Security Agreement executed by Massmarket Media Services, LLC; and
(7) the certificates and other documents required to be delivered under the Amended and Restated Borrower Security Agreement (collectively, the “Closing Documents”);
(ii) a certificate of the Secretary of each Obligor which shall certify (a) resolutions of the members of each Obligor evidencing approval an inspection of each of the locations where the Inventory of each Loan Party is located, the results of which must be satisfactory to Lender, (ix) Borrower will have Excess Availability of at least $3,800,000 after giving effect to (A) the initial Advance and other initial extensions of credit under this Agreement, (B) the payment of all fees and Lender Expenses required to be paid by Borrower on the Closing Documents to which such Obligor is Date under this Agreement or will be a party and the other matters contemplated hereby and thereby; (b) the names and true signatures of the officers of such Obligor authorized to sign each of the Closing Documents to which such Obligor is or will be a party and the other documents or certificates to be delivered pursuant to this Agreement by such Obligor or any of its officers; (c) with respect to Borrower and to Guarantors in existence on February 29, 2012, that there has been no change to the Organizational Documents of such Obligors since such date (or, if there has been such change, attaching copies of the amended Organizational Loan Documents);
(iii) certificates of good standing from the Secretary of State of the State of Delaware with respect to the legal existence of each Obligor;
(iv) with respect to Guarantors not in existence on February 29, 2012, (x) a copy of the certificate of formation of each such Guarantor certified by the Secretary of State of the State of Delaware, and (yC) a copy the payment of any dividends that were declared prior to the operating agreement of each such Guarantor certified by the Secretary of such Guarantor;
(v) evidence Closing Date but not yet paid, or that are proposed to be paid and are permitted under Section 5.6 hereof; (x) Lender holds a perfectedwill have obtained final credit approval, first priority Lien on (xi) Borrower will have received all Collaterallicenses, approvals and certifications required by any governmental authority necessary in connection with the execution of this Agreement and the Loan Documents and the completion of the transactions contemplated by this Agreement, and (yxii) none of such Collateral is subject all other conditions required by Lender shall have been fulfilled to any Lender’s satisfaction and all other Liens other than Permitted Liens;deliverables required by Lender shall have been delivered to Lender’s satisfaction, including without limitation the following:
(via) payment of the non-refundable fees and disbursements of Lender’s independent counsel, a Guaranty Agreement executed by S▇▇▇▇▇▇ ▇▇▇▇▇▇▇2.0 on Lender’s standard form;
(b) establishment of W▇▇▇▇ LLP, for the preparation of this Agreement and the instruments, documents and agreements delivered pursuant hereto to the extent invoiced prior to or on the Closing Date, plus such additional amounts as shall constitute Lender’s reasonable estimate of any such fees and expenses 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 Borrower and Lender with respect thereto)Fargo collection accounts;
(viic) an opinion of counsel for Obligorssatisfactory intercreditor agreement with any secured party or material debt holder on terms and conditions satisfactory to Lender, dated the Closing Datewhich shall contain, addressed to Lender and containing the opinions set forth on Exhibit C or among other opinions things, standstill provisions acceptable to Lender;
(d) Lender shall have been provided with evidence satisfactory to it that Lender has been named lender’s loss payee on the Loan Parties’ insurance policies;
(e) at closing and at all time thereafter, the Collateral and Availability position shall be materially consistent with the applicable projections submitted to Lender, given a degree of variance satisfactory to Lender;
(f) all Account Debtor remittances shall be directed to the Lockbox or the Collection Account;
(g) Lender shall have received a licensor waiver, in form and substance satisfactory to Lender, from Time Inc. Lifestyle Group for the Coastal Living brand, or Lender shall otherwise be satisfied that Borrower has used its best efforts to obtain such licensor waiver; and
(viiih) such Lender shall have received and be satisfied with all documentation and other documentsinformation determined by it to be required under applicable “know your customer”, instrumentsanti-terrorism and anti-money laundering rules and regulations, certificates including, without limitation, the Bank Secrecy Act, the Patriot Act and opinions as Lender may reasonably request in connection with the consummation of the transactions contemplated herebyOFAC.
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligations obligation of Lender to make Term the initial Advance or other initial extension of credit under this Agreement is subject to the fulfillment to Lender's satisfaction of each of the following conditions: (i) all Loan C Documents (including promissory notes evidencing the Line of Credit and the Advances Term Loan, pursuant to Section 1.9) and all other documents relating to this Agreement will have been executed and delivered, and Lender will have received copies of each Loan Party's organizational documents, satisfactory authorizing resolutions and recent good standing certificates for each Loan Party, as well as opinions of counsel to the Loan Parties, in each case satisfactory to Lender, (ii) Lender will have confirmed to its satisfaction that there has been no Material Adverse Change since the date of the last financial statements provided to Lender, (iii) Uniform Commercial Code and other searches and all Uniform Commercial Code and other filings deemed necessary by Lender will have been completed and will have confirmed Lender's first-priority Liens in the Collateral and the results thereof will be otherwise satisfactory to Lender, (iv) all insurance policies and other documents, agreements and actions required by this Agreement and the other Loan Documents will have been completed and will be in place, (v) no event which would constitute a Default or an Event of Default will have occurred, (vi) Lender will have received all required Collateral Access Agreements, (vii) Lender shall have received all financial information of each Loan Party required by this Agreement, including, without limitation, all financial projections, and monthly income statements, balance sheets and cash flow projections for a period determined by Lender, (viii) Lender will have completed its business, legal, and Collateral due diligence, including (a) a Collateral examination, appraisals and review of each Loan Party's Inventory, books and records and a verification of each Loan Party's representations and warranties to Lender, together with an appraisal of the Equipment of each Borrower and its Subsidiaries, and an updated collateral examination if the Closing Date shall occur more than 60 days after the initial collateral examination and audit of Borrowers and their Subsidiaries, in each case with results satisfactory to Lender, (b) an inspection of each of the locations where the Inventory of each Loan Party is located, the results of which must be satisfactory to Lender, (c) vendor and customer references (to the extent required by Lender in its discretion) and invoice verifications, (d) review of material contracts, if applicable, and (e) regulatory and related diligence, including credit and or background investigations and other diligence required by law, (ix) Borrowers will have Excess Availability of at least $3,000,000 after giving effect to (A) the initial Advance and other initial extensions of credit under this Agreement, (B) the payment of all fees and Lender Expenses required to be paid by Borrowers on the Closing Date under this Agreement or the other Loan Documents, and (C) the payment of past due accounts payable, (x) Lender will have obtained final credit approval, (xi) a letter, acceptable to Lender, from Fifth Third Bank ("Existing Lender") to Lender confirming the amount necessary to repay in full all of the obligations of the Loan Parties and its Subsidiaries owing to Existing Lender and obtain a release of all of the Liens existing in favor of Existing Lender in and to issue Letters the assets of Credit the Loan Parties and their Subsidiaries, (xii) each Loan Party will have received all licenses, approvals and certifications required by any governmental authority necessary in connection with the execution of this Agreement and the Loan Documents and the completion of the transactions contemplated by this Agreement and shall not become effective until the date on which the following have paid all taxes with respect thereto (including Florida documentary stamp taxes or, as applicable, affidavits of out of state execution), and (xiii) all other conditions required by Lender shall have been satisfiedfulfilled to Lender's satisfaction and all other deliverables required by Lender shall have been delivered to Lender's satisfaction, including without limitation the following:
(a) a Guaranty executed by each Guarantor on Lender's standard form;
(b) one or more certificates required by Lender or its counsel related to the matters described in this Section 3.1, including as to customary incumbency and corporate information, closing matters and Material Contracts;
(c) Control Agreements executed by the applicable Loan Party and each Controlled Account Bank;
(d) establishment of Wells Fargo cash management, operating accoun▇▇ ▇▇d collection accounts;
(e) execution and delivery of Letter of Credit applications and agreements;
(f) Lender shall have received evidence of the dissolution of Computerized Waste Systems, LLC, ISA Recycling, LLC, and Waste Equipment Sales & Service Co., LLC;
(g) Lender shall have received a duly executed letter agreement satisfactory to Lender from K & R, LLC as contemplated by Section 5.3(g)(i) and which, among other things, addresses certain matters in connection with the payment of amounts contemplated by Section 5.9(f);
(h) Lender shall have received a duly executed Certificate Regarding Equipment satisfactory to Lender from a duly authorized office of Administrative Borrower on behalf of itself and the other Borrowers;
(i) Lender shall have received all original certificates of title or similar title documents for all of the Loan Parties' owned vehicles and Equipment which are subject to certificate of title or similar statutes (as contemplated in Section 9-311 of the Code), together, in each case, with duly executed releases and applications for lien notations to reflect Lender as the sole lienholder on such vehicles and Equipment; and
(j) Borrowers shall have received and remitted to Lender net cash proceeds of a cash equity investment in Parent, on terms satisfactory to Lender in its Permitted Discretion, pursuant to the Equity Investment Documents, in an amount not less than $3,000,000, and Lender shall have received all of the followingtrue, in form correct and substance reasonably satisfactory to Lender:
(i) executed originals of each of:
(1) this Agreement;
(2) the Line of Credit Note;
(3) the Term Loan C Note;
(4) the Amended and Restated Borrower Security Agreement between Borrower and Lender, the Amended and Restated Guarantor Security Agreement between Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC, Psyop Games, LLC and Lender;
(5) a Joinder and Confirmation from Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC and Psyop Games, LLC, to Lender;
(6) a Supplement to Trademark Security Agreement executed by Massmarket Media Services, LLC; and
(7) the certificates and other documents required to be delivered under the Amended and Restated Borrower Security Agreement (collectively, the “Closing Documents”);
(ii) a certificate of the Secretary of each Obligor which shall certify (a) resolutions of the members of each Obligor evidencing approval of each of the Closing Documents to which such Obligor is or will be a party and the other matters contemplated hereby and thereby; (b) the names and true signatures of the officers completed copies of such Obligor authorized to sign each of documents evidencing such cash equity investment (and any corresponding warrant agreements), including the Closing Documents to which such Obligor is or will be a party and the other documents or certificates to be delivered pursuant to this Agreement by such Obligor or any of its officers; (c) with respect to Borrower and to Guarantors in existence on February 29, 2012, that there has been no change to the Organizational Documents of such Obligors since such date (or, if there has been such change, attaching copies of the amended Organizational Documents);
(iii) certificates of good standing from the Secretary of State of the State of Delaware with respect to the legal existence of each Obligor;
(iv) with respect to Guarantors not in existence on February 29, 2012, (x) a copy of the certificate of formation of each such Guarantor certified by the Secretary of State of the State of Delaware, and (y) a copy of the operating agreement of each such Guarantor certified by the Secretary of such Guarantor;
(v) evidence that (x) Lender holds a perfected, first priority Lien on all Collateral, and (y) none of such Collateral is subject to any other Liens other than Permitted Liens;
(vi) payment of the non-refundable fees and disbursements of Lender’s independent counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ LLP, for the preparation of this Agreement and the instruments, documents and agreements delivered pursuant hereto to the extent invoiced prior to or on the Closing Date, plus such additional amounts as shall constitute Lender’s reasonable estimate of any such fees and expenses 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 Borrower and Lender with respect thereto);
(vii) an opinion of counsel for Obligors, dated the Closing Date, addressed to Lender and containing the opinions set forth on Exhibit C or other opinions acceptable to Lender; and
(viii) such other documents, instruments, certificates and opinions as Lender may reasonably request in connection with the consummation of the transactions contemplated herebyEquity Investment Subordination Agreement.
Appears in 1 contract
Sources: Credit Agreement (Industrial Services of America Inc /Fl)
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligations obligation of Lender to make Term the initial Advance and any other initial extension of credit under this Agreement is subject to the fulfillment to Lender’s satisfaction of each of the following conditions:
(a) all Loan C Documents and all other documents relating to this Agreement will have been executed and delivered, and Lender will have received copies of each Loan Party’s organizational documents, satisfactory authorizing resolutions, recent good standing certificates for each Loan Party and recent certificates of status with respect to each Loan Party issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Loan Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which shall indicate that such Loan Party is in good standing in such jurisdictions;
(b) Lender will have confirmed to its satisfaction that there has been no Material Adverse Change since the date of the last financial statements provided to Lender;
(c) Uniform Commercial Code and other Lien and background searches and all Uniform Commercial Code and other filings deemed necessary by Lender with respect to each Loan Party will have been completed and will have confirmed Lender’s first-priority Liens in the Collateral and the Advances and results thereof will be otherwise satisfactory to issue Letters Lender;
(d) [Reserved];
(e) no Default or an Event of Credit shall not become effective until the date on which the following conditions shall Default will have been satisfied, and occurred;
(f) Lender shall have received all financial information of the followingeach Loan Party required by this Agreement, including, without limitation, all financial projections requested by Lender, in form and substance reasonably acceptable to Lender (including as to scope and underlying assumptions);
(g) Lender will have completed its business, legal, and collateral due diligence, including (i) a collateral examination, appraisals and review of each Loan Party’s books and records and verification of each Loan Party’s representations and warranties to Lender, the results of which must be satisfactory to Lender:, and (ii) completion of Patriot Act searches, OFAC/PEP searches and customary individual background checks searches for each Loan Party’s senior management and key principals and each other Loan Party, the results of which will be satisfactory to Lender;
(h) Lender will have obtained final credit approval;
(i) executed originals of Lender shall have established cash management, operating accounts and collection accounts for each of:Borrower;
(1j) evidence that each Loan Party will have received all licenses, approvals and certifications required by any governmental authority necessary in connection with the execution of this Agreement and the Loan Documents and the completion of the transactions contemplated by this Agreement;
(2k) Borrowers will have paid all Lender Expenses incurred with the Line of Credit Notetransactions evidenced by the Loan Documents;
(3l) Borrowers will have Liquidity of not less than $10,000,000 as of the Term Loan C Note;
Closing Date (4) the Amended and Restated Borrower Security Agreement between Borrower and Lender, the Amended and Restated Guarantor Security Agreement between Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC, Psyop Games, LLC and Lender;
(5) a Joinder and Confirmation including not less than $2,000,000 of Liquidity arising from Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC and Psyop Games, LLC, to Lender;
(6) a Supplement to Trademark Security Agreement executed by Massmarket Media Services, LLCAvailability; and
(7m) the certificates and all other documents conditions required by Lender shall have been fulfilled to be delivered under the Amended and Restated Borrower Security Agreement (collectively, the “Closing Documents”);
(ii) a certificate of the Secretary of each Obligor which shall certify (a) resolutions of the members of each Obligor evidencing approval of each of the Closing Documents to which such Obligor is or will be a party and the other matters contemplated hereby and thereby; (b) the names and true signatures of the officers of such Obligor authorized to sign each of the Closing Documents to which such Obligor is or will be a party and the other documents or certificates to be delivered pursuant to this Agreement by such Obligor or any of its officers; (c) with respect to Borrower and to Guarantors in existence on February 29, 2012, that there has been no change to the Organizational Documents of such Obligors since such date (or, if there has been such change, attaching copies of the amended Organizational Documents);
(iii) certificates of good standing from the Secretary of State of the State of Delaware with respect to the legal existence of each Obligor;
(iv) with respect to Guarantors not in existence on February 29, 2012, (x) a copy of the certificate of formation of each such Guarantor certified by the Secretary of State of the State of Delaware, and (y) a copy of the operating agreement of each such Guarantor certified by the Secretary of such Guarantor;
(v) evidence that (x) Lender holds a perfected, first priority Lien on all Collateral, and (y) none of such Collateral is subject to any other Liens other than Permitted Liens;
(vi) payment of the non-refundable fees and disbursements of Lender’s independent counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ LLP, for the preparation of this Agreement satisfaction and the instruments, documents and agreements all other deliverables required by Lender shall have been delivered pursuant hereto to the extent invoiced prior to or on the Closing Date, plus such additional amounts as shall constitute Lender’s reasonable estimate of any such fees and expenses 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 Borrower and Lender with respect thereto);
(vii) an opinion of counsel for Obligors, dated the Closing Date, addressed to Lender and containing the opinions set forth on Exhibit C or other opinions acceptable to Lender; and
(viii) such other documents, instruments, certificates and opinions as Lender may reasonably request in connection with the consummation of the transactions contemplated herebysatisfaction.
Appears in 1 contract
CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligations obligation of Lender to make Term the initial Advance or other initial extension of credit under this Agreement is subject to the fulfillment to Lender’s satisfaction or waiver of each of the following conditions: (i) all Loan C Documents and all other documents relating to this Agreement will have been executed and delivered, and Lender will have received copies of each Loan Party’s organizational documents, reasonably satisfactory authorizing resolutions and recent good standing certificates for each Loan Party, (ii) Lender will have confirmed to its reasonable satisfaction that there has been no Material Adverse Change since the date of the last financial statements provided to Lender, (iii) Uniform Commercial Code and other searches and all Uniform Commercial Code and other filings deemed reasonably necessary by Lender will have been completed and will have confirmed Lender’s first-priority Liens in the Collateral and the Advances results thereof will be otherwise reasonably satisfactory to Lender, (iv) all insurance policies and to issue Letters of Credit shall not become effective until other documents, agreements and actions required by this Agreement and the date on which the following conditions shall other Loan Documents will have been satisfiedcompleted and in place, and (v) no event which would constitute a Default or an Event of Default will have occurred, (vi) Lender will have received all required Collateral Access Agreements, (vii) Lender shall have received all financial information of each Loan Party required by this Agreement, including, without limitation, all financial projections, (viii) Lender will have completed its business, legal, and Collateral due diligence, including (a) a Collateral examination, appraisals and review of each Loan Party’s books and records and verification of each Loan Party’s representations and warranties to Lender, the following, in form and substance results of which must be reasonably satisfactory to Lender:
, and (ib) executed originals of each of:
(1) this Agreement;
(2) the Line of Credit Note;
(3) the Term Loan C Note;
(4) the Amended and Restated Borrower Security Agreement between Borrower and Lender, the Amended and Restated Guarantor Security Agreement between Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC, Psyop Games, LLC and Lender;
(5) a Joinder and Confirmation from Blacklist Productions, LLC, Massmarket Media Services, LLC, Psyop Productions, LLC, Influence Content, LLC, Psyop Film and Television, LLC, Persuade Content, LLC, Psyop Filmed Entertainment, LLC and Psyop Games, LLC, to Lender;
(6) a Supplement to Trademark Security Agreement executed by Massmarket Media Services, LLC; and
(7) the certificates and other documents required to be delivered under the Amended and Restated Borrower Security Agreement (collectively, the “Closing Documents”);
(ii) a certificate of the Secretary of each Obligor which shall certify (a) resolutions of the members of each Obligor evidencing approval an inspection of each of the locations where the Inventory of each Loan Party is located, the results of which must be reasonably satisfactory to Lender, (ix) Borrowers will have Excess Availability of at least $1,600,000 after giving effect to (A) the initial Advance and other initial extensions of credit under this Agreement, (B) the payment of all fees and Lender Expenses required to be paid by Borrowers on the Closing Documents to which such Obligor is Date under this Agreement or will be a party and the other matters contemplated hereby and thereby; (b) the names and true signatures of the officers of such Obligor authorized to sign each of the Closing Documents to which such Obligor is or will be a party and the other documents or certificates to be delivered pursuant to this Agreement by such Obligor or any of its officers; (c) with respect to Borrower and to Guarantors in existence on February 29, 2012, that there has been no change to the Organizational Documents of such Obligors since such date (or, if there has been such change, attaching copies of the amended Organizational Loan Documents);
(iii) certificates of good standing from the Secretary of State of the State of Delaware with respect to the legal existence of each Obligor;
(iv) with respect to Guarantors not in existence on February 29, 2012, (x) a copy of the certificate of formation of each such Guarantor certified by the Secretary of State of the State of Delaware, and (yC) a copy of the operating agreement of each such Guarantor certified by the Secretary of such Guarantor;
(v) evidence that (x) Lender holds a perfected, first priority Lien on all Collateral, and (y) none of such Collateral is subject to any other Liens other than Permitted Liens;
(vi) full payment of the non-refundable fees and disbursements of Lender’s independent counsel, ▇subordinated debt owed to ▇▇▇▇▇ ▇▇▇▇▇▇▇ an amount not to exceed $2,100,000; (x) Lender will have obtained final credit approval, (xi) each Loan Party will have received all licenses, approvals and certifications required by any governmental authority necessary in connection with the execution of this Agreement and the Loan Documents and the completion of the transactions contemplated by this Agreement, and (xii) all other conditions required by Lender shall have been fulfilled to Lender’s reasonable satisfaction and all other deliverables required by Lender shall have been delivered to Lender’s reasonable satisfaction, including without limitation the following:
a Guaranty Agreement executed by each Guarantor;
(b) subordination agreements executed by each holder of the Existing Subordinated Debt and Seller Subordinated Debt except as set forth in Section 3.3;
(c) Control Agreements executed by the applicable Loan Party and each Controlled Account Bank;
(d) establishment of ▇▇▇▇▇ LLPFargo cash management, for the preparation of this Agreement operating accounts and the instruments, documents and agreements delivered pursuant hereto to the extent invoiced prior to or on the Closing Date, plus such additional amounts as shall constitute Lender’s reasonable estimate of any such fees and expenses 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 Borrower and Lender with respect thereto);
(vii) an opinion of counsel for Obligors, dated the Closing Date, addressed to Lender and containing the opinions set forth on Exhibit C or other opinions acceptable to Lendercollection accounts; and
(viiie) such other documentsexecution and delivery of Letter of Credit applications and agreements, instruments, certificates and opinions as Lender may reasonably request in connection with the consummation of the transactions contemplated herebyif applicable.
Appears in 1 contract